RENDERED: OCTOBER 29, 2020 TO BE PUBLISHED
Supreme Court of Kentucky 2019-SC-0692-DGE
CABINET FOR HEALTH & FAMILY APPELLANTS SERVICES, COMMONWEALTH OF KENTUCKY
V. ON REVIEW FROM COURT OF APPEALS NOS: 2018-CA-0172; 2008-CA-0173; 2018-CA-0174; 2018-CA-0175; 2018-CA-0176; 2018-CA-0177 HONORABLE ROBERT MATTINGLY, JUDGE CALLOWAY CIRCUIT COURT NOS: 2016-J-0150-001; 2016-J-0151-001; 2017-J-0093-001
K.S., MOTHER APPELLEES L.M., FATHER
OPINION OF THE COURT BY JUSTICE LAMBERT
AFFIRMING IN PART AND REVERSING IN PART
The Unified Juvenile Code, in multiple instances, expressly provides a
right to counsel to indigent parents. This case is about whether Kentucky law
grants indigent parents a right to state-funded expert witnesses in the absence
of express statutory language providing for such assistance. Specifically, the
issues are: (1) whether KRS1 620.100(1)(b) grants indigent parents a right to
state-funded expert witnesses and (2) if not, whether the Kentucky
Constitution, as a matter of due process, guarantees this right.
1 Kentucky Revised Statute I. FACTUAL BACKGROUND
On the afternoon of October 15, 2016, K.S. (“Mother”) set off for a job
interview at a local hotel, leaving her two children, D.M., age thirteen months
and L.M., age three months, in the care of their father. While walking to the
hotel, Mother decided to call father, also L.M. (“Father”), to tell him about
seeing his sister as she left their apartment. Before, she could tell her story,
Father informed her that something was wrong with L.M. Mother rushed back
to the apartment and found Father standing outside holding L.M. Mother
claimed that L.M. appeared pale and seemed to be having trouble breathing. In
a panic, Father flagged down a passerby, who took Father and L.M. to Murray-
Calloway County Hospital. Mother, accompanied by D.M. and other family
members, followed closely behind.
Emergency staff observed that L.M. had bruising above his right eye.
Further testing revealed a brain hemorrhage. The hospital sent L.M. to
Vanderbilt University Medical Center for additional testing and treatment.
Members of the Vanderbilt Child Abuse Response and Evaluation (CARE) team
engaged in a comprehensive medical evaluation of L.M. The written report of
this evaluation stated that testing revealed the presence of a subdural
hematoma around L.M.’s skull, indicia of a recently healed rib fracture, and
indicia of possible past fractures. The CARE team concluded that the injuries
were consistent with child abuse given the nature of the injury, the age of the
child, and the lack of a clear exculpatory explanation by the parents.
2 On the same day, Appellant, the Cabinet for Health and Family Services
(“The Cabinet”), filed dependency, neglect, and abuse (“DNA”) petitions on
behalf of L.M. and his older sibling, D.M., based on risk of harm. The Cabinet
subsequently obtained an emergency custody order for both children. The
Calloway County Family Court held a Temporary Removal Hearing on October
21, 2016. Prior to the hearing, the court determined that both Mother and
Father were indigent and appointed each party separate counsel. At the
hearing, the Cabinet was granted temporary custody of both children.
Four months later, at a pre-trial conference, counsel for Father orally
requested funds to hire a medical expert to review the findings of the
Vanderbilt CARE team. Counsel for Mother joined this request. The parties
“agreed at the conference for the Court to appoint the Pediatric Medical Team
out of Louisville, Kentucky to review the findings of Vanderbilt and submit an
assessment.”2 On March 8, 2017, the court entered an order explaining that
the Louisville-based physicians refused to examine the CARE team’s report.
The court also explained that the Cabinet claimed it lacked statutory authority
to provide parents with funds for medical experts.
From this point, the case languished for several months. Before an
adjudication hearing could be held, Mother gave birth to a third child, N.M.
Within two days of the child’s birth, the Cabinet sought and received temporary
2 Order of March 8th, 2017, Case Nos: 16-J-0150-001 and 16-J-0151-001.
3 custody of N.M. based on the risk of future harm posed by the parents’
continued custody.
During this interim period, Dr. Spencer Romaine of the Orthopedic
Institute of Western Kentucky examined the Calloway County x-ray images of
L.M.’s ribs. Counsel for Father filed a letter from Dr. Romaine summarizing his
interpretation of the images. Dr. Romaine opined that he did not observe any
apparent abnormalities to the rib area, with the caveat that no radiology
interpretation was available.
Eventually, after withdrawal of both parents’ initial counsel and the
appointment of new counsel, an adjudication hearing was held on December 4,
2017. At the hearing, the Commonwealth presented testimony from Dr. Cody
Penrod, a member of the CARE team at Vanderbilt. Dr. Penrod’s testimony
effectively summarized the team’s written report. He testified that the tests
performed disclosed a healed fracture of L.M.’s fourth left rib and a subdural
brain hemorrhage. On examination, Dr. Penrod acknowledged that the x-ray
from Murray-Calloway County Hospital did not show a rib fracture but clarified
that the imaging suggested that the fracture had recently healed.
Mother presented testimony concerning her general treatment of the
children and L.M.’s previous medical incidents. In particular, L.M.’s regular
physician, Dr. Kimberly Burch, testified that Mother reported that L.M. seemed
to have difficulty breathing within hours of his birth. Mother’s counsel asked
both Dr. Penrod and Dr. Burch whether a subdural hematoma could result
from a difficult vaginal birth. Both physicians stated that it was possible,
4 though they had not examined any records supporting that Mother endured a
difficult delivery.
Following the hearing, the court partially completed the form
adjudication orders, finding that L.M. and D.M. and N.M. were neglected or
abused but failed to complete Section B of the Conclusions of Law. Left
undetermined was who inflicted the injuries or created a risk for injuries.
Based on these findings, the court generally determined that each of the
children was neglected or abused while under the care of Mother and Father.
After disposition, both parents appealed the family court’s findings. The
Court of Appeals reversed the family court, holding that KRS 620.100(1)(b)
granted indigent parents a right to funding for reasonably necessary expert
assistance. The court reasoned that the statute’s reference to KRS Chapter 31
supported a contextual right to expert assistance in DNA cases. Thus, the
court remanded the case to the trial court for a determination of whether
Mother and Father were entitled to funding according to the test in Benjamin v.
Commonwealth.3 We granted discretionary review.
II. ANALYSIS
Kentucky law provides indigent parents with a statutory right to counsel
in proceedings which threaten their fundamental right to care and custody of
3 266 S.W.3d 775 (Ky. 2008).
5 their children.4 By statute, indigent parents in DNA proceedings must receive
counsel appointed by the court and paid through the Finance and
Administration Cabinet.5 The Court of Appeals found that KRS 620.100(1)(b)
also entitled indigent parents to state-funded expert assistance.
We review a lower court’s interpretation of a statute de novo.6 We begin,
as we always do, with the text of the statute.7 KRS 620.100(1)(b) states: “The
court shall appoint separate counsel for the parent who exercises custodial
control or supervision if the parent is unable to afford counsel pursuant to KRS
Chapter 31”. Here, the dispute hinges upon the effect of the phrase “pursuant
to KRS Chapter 31”.
Because the statute does not define “pursuant to” in a special, legal
sense, we look to the ordinary meaning of the phrase.8 And in determining a
phrase’s ordinary meaning, dictionaries are a good place to start.9 “Pursuant
to” means “in a way that agrees with or follows (something)” or “in accordance
with (something).”10 Here, both parties appear to agree that the term should
See e.g., KRS 620.100(1)(b)(dependency, neglect, and abuse proceedings); KRS 4
625.080(3)(involuntary termination of parental rights proceedings); KRS 199.502(non- consensual adoption proceedings). 5 KRS 620.100(1)(b). 6 Garrard Cty. v. Middleton, 520 S.W.3d 746, 748 (Ky. 2017). 7 Id. at 750 (citing Owen v. Univ. of Kentucky, 486 S.W.3d 266, 270 (Ky. 2016) (“[T]he first rule [of statutory construction] is that the text of the statute is supreme”). 8 Bailey v. Reeves, 662 S.W.2d 832, 834 (Ky. 1984)(“We have a duty to accord to
words of a statute their literal meaning unless to do so would lead to an absurd or wholly unreasonable conclusion.”). 9 Kentucky Props. Holding LLC v. Sproul, 507 S.W.3d 563 (Ky. 2016). 10 MERRIAM–WEBSTER DICTIONARY (online ed.); see also pursuant to, BLACK’S LAW
DICTIONARY (11th Edition 2019) (“in compliance with” or “in accordance with”).
6 carry this ordinary meaning. The question, however, is what exactly must
follow or be in accordance with KRS Chapter 31.
Mother adopts the Court of Appeals’ reading of the statute, contending
that the appointment of counsel as a whole must be in accordance with KRS
Chapter 31. Under this reading, an indigent parent must receive the same
procedural protections given to indigent criminal defendants under Chapter 31,
including the guarantee of the “necessary services and facilities of
representation” in KRS 31.110.11 The Cabinet, on the other hand, interprets
KRS 620.100’s reference to Chapter 31 only to incorporate the test for
determining whether a parent is indigent.
We find the latter view to be the correct one. Mother’s construction of
the statute clashes with a natural reading of KRS 620.100(1)(b). Between the
phrases “shall appoint separate counsel” and “pursuant to KRS Chapter 31,”
the General Assembly included the phrase “if the parent is unable to afford
counsel.” This phrase immediately precedes the reference to KRS Chapter 31
and is not set off by any form of punctuation. The grammar and structure of
the sentence indicates that the phrases “if the parent is unable to afford
counsel” and “pursuant to KRS Chapter 31” must be considered together.
Under this reading, counsel shall be appointed only if a party is determined to
be indigent according to the process set out in KRS Chapter 31.
11 See KRS 31.110(1)(b).
7 Consideration of KRS 620.100 in the context of similar statutes—both in
the Unified Juvenile Code and beyond—supports this interpretation.12 Three
other statutes in the Unified Juvenile Code set forth a right to counsel for
indigent parties:
• KRS 199.502(3), governing petitions for adoption where the
biological parent does not consent, states: “[the Court] shall
determine if the [biological parent] is indigent and, therefore,
entitled to counsel pursuant to KRS Chapter 31.
• KRS 625.080(3), governing involuntary termination of parental
rights cases, states: “[the Court] shall determine if the parent is
indigent and, therefore, entitled to counsel pursuant to KRS
Chapter 31”.
• KRS 625.0405(1), governing voluntary termination of parental
rights cases, states: “if the court determines pursuant to KRS
Chapter 31 that the requesting parent is indigent, the court shall
appoint an attorney … to represent the parent.”
Outside of the parental rights setting, the General Assembly uses similar
language for the purpose of determining whether a litigant is indigent. KRS
534.030 states that fines shall not be imposed “upon any person determined to
12 See Jefferson Cty. Bd. of Ed. v. Fell, 391 S.W.3d 713 (Ky. 2012)(“The particular word, sentence, or subsection under review must also be viewed in context…other relevant parts of the legislative act must be considered in determining the legislative intent.”).
8 be indigent pursuant to KRS Chapter 31.”13 The common thread binding each
of these provisions is the use of the provisions of KRS Chapter 31 to determine
if a party cannot afford counsel. Put simply, these statutes use the language
“pursuant to Chapter 31” to point Courts towards a body of rules they should
use to determine if a party is indigent; they do not indicate a broader
incorporation of KRS Chapter 31.
In sum, the phrase “pursuant to Chapter 31” when used in the context of
the right-to-counsel provisions of the Unified Juvenile Code carries with it a
consistent meaning. The phrase as used in KRS 620.100(1)(b) incorporates
only those provisions of KRS Chapter 31 necessary to determine if a litigant is
indigent. We hold, therefore, that KRS 620.100(1)(b) does not entitle an
indigent parent to state-funded expert assistance.
B. DUE PROCESS IN PARENTAL RIGHTS PROCEEDINGS
Next, we consider whether the due process provisions of the Kentucky
and United States Constitutions require indigent parents receive access to
expert assistance in dependency, neglect, and abuse cases.14 We hold that,
under certain circumstances, parents are entitled to reasonably necessary
13KRS 530.030(4)(emphasis added); see also KRS 530.040 (including the same language in the statute concerning misdemeanors and violations). 14 Before the Court of Appeals, Mother framed her due process argument as a violation of her Sixth Amendment rights. The Sixth Amendment, however, only applies to criminal cases. See e.g., Turner v. Rogers, 562 U.S. 431 (2011). Nevertheless, the Court of Appeals implicitly adopted a due process analysis by incorporating the test of Benjamin v. Commonwealth, 266 S.W.3d 775, 789 (Ky. 2008), which relies on principles of due process. As such, we consider the issue independent of the statutory claim.
9 expert assistance. That determination, however, is best left to the discretion of
the trial court on a case-by-case basis, subject to appellate review.
Section 1 of the Kentucky Constitution provides that all citizens “are, by
nature, free and equal, and have certain inherent and inalienable rights,”
including “the right of enjoying and defending their lives and liberties.”15
Section 1 affirms that all citizens of the Commonwealth enjoy certain
fundamental rights.16 Section 2 of the Kentucky Constitution, in turn, helps
ensure that guarantee of individual liberty by forbidding the Commonwealth
from exercising “absolute and arbitrary power over the lives, liberty and
property” of its citizens.17 This prohibition against arbitrary state action
includes a guarantee of procedural due process at least as protective as its
federal counterpart.18 And principles of due process arising under both
constitutions dictate that the Commonwealth must provide fair procedures
when it seeks to deprive a citizen of a liberty interest.19
15 KY. CONST. §1.
16 See Commonwealth v. Wasson, 842 S.W.2d 487 (1992).
17 KY. CONST. §2. 18 See e.g., Commonwealth Nat. Res. & Envtl. Prot. Cabinet v. Kentec Coal Co., 177 S.W.3d 718, 735 (Ky. 2005) (applying the federal due process framework to a claim brought under both the Fourteenth Amendment and Section 2); Transp. Cabinet v. Cassity, 912 S.W.2d 48, 51 (Ky. 1995). 19 See e.g., TECO Mechanical Contractor, Inc. v. Commonwealth, 366 S.W.3d 386,
393 (Ky. 2012); Mahoney v. Carter, 938. S.W.2d 575, 576 (Ky. 1997).
10 It is well-established that a parent’s right to custody of his or her
children is a protected liberty interest.20 A parent’s right to the
“companionship, care, custody, and management of his or her children …
undeniably warrants deference and, absent a powerful countervailing interest,
protection.”21 As such, when the Commonwealth moves to intervene in the
parent-child relationship, it “must provide the parents with fundamentally fair
procedures.”22
Two strands of case law—one federal and one unique to Kentucky—
define the scope of procedural protections afforded to parents in child welfare
proceedings. First, numerous United States Supreme Court decisions stress
that child welfare proceedings must adequately safeguard his or her
fundamental interest in raising his or her child. In Stanley v. Illinois, the Court
held that due process requires the State to demonstrate that a parent is unfit
before placing his child in foster care.23 Similarly, in Santosky v. Kramer, the
Court held that due process requires the State to demonstrate that a parent
was unfit by clear and convincing evidence before permanently terminating the
20See e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000)( (“The liberty interest ... of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.”); Morgan v. Getter, 441 S.W.3d 94, 111-12 (Ky. 2014). Cabinet for Health and Family Serv. v. K.H., 423 S.W.3d 204, 209 (Ky. 21
2014)(quoting Santosky v. Kramer, 455 U.S. 745, 753 (1982)). 22 Id. 23 405 U.S. 645 (1972)(holding unconstitutional a presumption that unmarried
fathers are unfit).
11 parent-child relationship.24 At the core of each decision lie the unique status
of a parent’s liberty interest in the custody of his or her children.25
However, not all cases warrant the same degree of procedural protection.
For instance, in Lassiter v. Department of Social Services, the Court held that
parents do not have an absolute right to counsel in termination of parental
rights cases.26 In doing so, the Court reasoned that due process does not lend
itself to categorical rules, stating that “[due process] is not a technical
conception with a fixed content unrelated to time, place, and circumstances.”27
Accordingly, the Court determined the question of whether due process
requires appointed counsel should be “answered in the first instance by the
trial court,” taking into consideration the specific circumstances of the parties
and the facts of the case at hand.28
Kentucky, by statute, furnishes indigent parents with a categorical right
to counsel in several child welfare proceedings.29 The Cabinet asserts that this
fact should foreclose any further consideration of due process. Essentially, it
claims that because KRS 620.100(1)(b) already gives indigent parents more
24 455 U.S. 745 (1982). 25 See Id. at 758-59 (“[It is] plain beyond the need for multiple citation that a natural parent’s desire for and right to the companionship, care, custody, and management of his or her children is an interest far more precious than any property right.”)(internal quotations omitted). 26 452 U.S. 18, 31-32 (1981). 27 Id. at 24-25. 28 Id at 31-32. 29See e.g., KRS 620.100(1)(b) (dependency, neglect, and abuse proceedings); KRS 625.080(3)(involuntary termination of parental rights proceedings); KRS 199.502(non-consensual adoption proceedings).
12 process than is due under the Federal Constitution, further procedural
protections may derive only from the statute itself. This argument, however,
contravenes well-established principles of due process. The question of what
procedures are necessary to protect a right is a question of constitutional law
for a judge, not a question to be determined by state legislatures.30 So the fact
that the General Assembly decided to supply litigants with more process than
is constitutionally required in one context does not insulate child welfare
proceedings from further constitutional scrutiny.
In fact, multiple Kentucky cases provide more protection to indigent
parents than is required either by the Federal Constitution or by the relevant
statutory provisions of the Juvenile Code. For example, in R.V. v. Com. Dept.
for Health and Family Services, the Court of Appeals held that the due process
clause, as well as KRS 625.080(3) and KRS 620.100(1), require indigent
parents to be represented at “every critical stage of the proceedings …
[including] all critical stages of the underlying dependency proceeding.”31
There, while both parents were represented by appointed counsel throughout
the adjudication of the dependency action, the trial court relieved appointed
counsel before subsequent permanency and goal change hearings. During
those hearings, the trial court entered erroneous factual findings regarding the
30 See Cleveland Bd of Ed. v. Loudermill, 470 U.S. 532, 541 (1985) (“[T]he right to due process is conferred, not by legislative grace, but by constitutional guarantee”). 31 242 S.W.3d 669, 672-73 (Ky. App. 2007).
13 length of time the child had been in foster care and the Cabinet changed its
goal from returning the child to permanent foster care placement.
In reversing the termination of parental rights, the Court of Appeals
recognized the significant impact of DNA proceedings on a parent’s liberty
interest:
Kentucky's statutory scheme to protect children and to adjudicate parental rights provides a continuum of proceedings, even though a dependency action is not required prior to the filing of a termination petition. Clearly, the proceedings in a dependency action greatly affect any subsequent termination proceeding.32
Based on this observation, the R.V. court correctly reasoned that due
process required further protection. In this manner, the court found a
constitutional right to counsel at proceedings not explicitly covered by Lassiter
or KRS 620.100.
Likewise, in Z.T. v. M.T.33, the Court of Appeals built on the R.V. decision,
holding that an indigent parent may bring a claim for ineffective assistance of
counsel against her appointed counsel in a DNA proceeding. While the court
expressed caution in allowing these claims, the court found it “logical that the
parent’s right to counsel includes effective representation.”34 Thus the Court
concluded that “if counsel’s errors were so serious that it is apparent from the
record that the parent was denied a fair and meaningful opportunity to be
32 Id.
33 258 S.W.3d 31 (Ky. App. 2008).
34 Id. at 36.
14 heard so that due process was denied, this Court will consider a claim that
counsel was ineffective.”35
Certain general principles emerge from these cases. First, a parent’s
right to custody and care of his or her children is a uniquely important liberty
interest. Second, federal and state courts, in response to the special nature of
this liberty interest, impart significant procedural protections to parents in
child welfare proceedings. While these procedures are less protective than
criminal proceedings in which physical liberty is at stake, they are more
significant than cases involving property rights.36 Third, process depends on
context. The foundational principle of procedural due process—fundamental
fairness—requires courts to resist mechanical application of its prior case law.
Instead, courts must appraise the value of specific procedures in light of the
particular facts of the case. Kentucky case law, in reaching beyond Lassiter in
certain circumstances, adheres to this foundational principle.
With these principles in mind, we address the question of expert funding.
Kentucky case law is largely silent on the issue.37 Courts in three other states
35 Id. 36 Cf. Ake v. Oklahoma, 470 U.S. 68, 76 (1985)(identifying that a paternity action is “quasi-criminal” in nature and that prior holdings extend greater procedural protections to litigants in such actions); Kramer, 455 U.S. at 758-59 (holding that a higher burden of proof is required in termination of parental rights proceedings than ordinary civil actions).
37 This issue came before the court recently in H.C. v. Cabinet for Health & Family Serv., No. 2018-CA-000164-ME, 2018 WL 3957101 (Aug. 17, 2018). We did not reach the merits, however, because reversal was warranted on procedural grounds.
15 have recognized a right to appointed experts in child welfare proceedings.38
Mother contends that the due process principles arising from R.V. and Z.T.
similarly require the Commonwealth to provide funding when expert testimony
is reasonably necessary. To determine whether fundamental fairness
necessitates certain procedural protections, we look to the analytical
framework set out in Matthews v. Eldridge.39
Matthews requires the balancing of three factors: (1) the private interest
at stake; (2) the government’s interest in administrative efficiency; and (3)
whether the additional procedures sought will increase the accuracy of fact-
finding and reduce the risk of erroneous deprivation.40 First, the private
interest. As summarized above, decades of federal and state case law
foreground the strength of the private interest in this case. Moreover, while we
acknowledge that DNA proceedings do not permanently remove children from
their parents; children may be placed in foster care for several months at a
time while a DNA case is pending.41 Temporary or not, that is a significant
38 State ex rel. Children Youth & Families Dep't v. Kathleen D.C., 141 N.M. 535, 157 P.3d 714, 719 (2007)(“[I]n certain circumstances, due process may require the appointment of an expert witness at the State's expense to an indigent parent in a neglect and abuse proceeding.”); In re Yarbrough Minors, 885 N.W.2d 878, 890-92 (Mich. App 2016) (holding that due process may require appointed experts in termination of parental rights proceedings); In re Shaeffer Children, 621 N.E.2d 426, 431 (Oh. App.1993)(stating that due process requires the appointment of a psychiatric expert in certain permanent custody proceedings). But see In re J.T.G., 121 S.W.3d 117, 130 (Tex. App.2003) (declining invitation to extend Ake to parental termination cases). 39 424 U.S. 319 (1976). 40 Id. at 335. 41 Here, L.M. and D.M. were in foster care for over one year before an
adjudicatory hearing was held.
16 deprivation of liberty. Of course, DNA proceedings may evolve from a
temporary out-of-home placement to permanent custody to a third party or
termination of parental rights and adoption.
Second, we note that the Cabinet’s interest in efficiency is two-fold. Of
course, the Cabinet wishes to expend its resources in as prudent a manner as
possible. That wish is legitimate.42 But the Cabinet’s pecuniary interest alone
does not overcome the significance of a parent’s liberty interest in the
continued care of his or her children.43 Nor is foster care without its financial
cost to the citizens of the Commonwealth. The Cabinet’s interest in efficiency,
however, also stems from the need to ensure the well-being of children.
Drawn-out court proceedings pose the risk of depriving the child of a stable
upbringing and subjecting the child to repeated trauma. The efficient
operation of child-welfare proceedings serves the government’s interest in
assuring the best interests of children in addition to guarding the
Commonwealth’s coffers.
Given the relative strength of the private and public interests, the final
Matthews factor—the impact of additional procedures on accurate fact-
finding—proves determinative. In certain cases, a parent’s ability to
understand and rebut medical testimony may be vital to the outcome of a
42 See Lassiter, 452 U.S. at 28. 43 See Id.
17 case.44 While trained legal counsel is capable of a great deal, lawyers are not
doctors. Nor are judges. In cases presenting complex issues of medical or
psychiatric evidence, consultation with a medical expert strengthens the ability
of counsel to understand the evidence and to cross-examine the experts put on
by the Cabinet. In these cases, lack of availability of a witness with specialized
knowledge increases the risk that a parent may suffer an erroneous
deprivation.
However, we appreciate that many, if not most, DNA proceedings do not
present significant issues of medical proof. In those cases, or cases where
there is visible evidence of abuse or significant witness testimony regarding a
parent’s treatment of the child, expert testimony may serve only to prolong an
otherwise straightforward case.
Therefore, we decline to adopt a per se rule requiring the provision of
funds for expert witnesses in every DNA case. Rather we acknowledge, as the
Lassiter court did, that procedural due process is a flexible concept.45 The
benefit of expert testimony depends upon of the facts presented in a given case.
Thus, the question of whether due process requires a court-appointed expert is
best left to the judgment of the trial court, subject to appellate review. In those
cases, we hold that the due process provisions of the federal and state
44 See Lassiter, 452 U.S. at 30 (“Expert medical and psychiatric testimony,
which few parents are equipped to understand and fewer still to confute, is sometimes presented.”). 45 Id. at 24-25.
18 constitutions require the Commonwealth to provide indigent parents with the
assistance of an expert.
C. BENJAMIN IN THE CONTEXT OF DNA PROCEEDINGS
Balancing tests like the Matthews framework place significant discretion
in the trial court. Absent certain guideposts, courts applying a balancing test
risk the appearance of deciding cases in an ad hoc fashion. Thankfully,
Kentucky law, via Benjamin v. Commonwealth,46 supplies a test more narrowly
tailored to the context of expert funding.
Benjamin flows from the United States Supreme Court’s decision in Ake
v. Oklahoma.47 Ake held that a state must provide access to a psychiatric
expert when the defendant makes a threshold showing that his mental state is
likely to be a significant issue. In a later decision, the Court clarified that a
defendant must provide more than “underdeveloped assertions that the
requested assistance would be beneficial.”48 In Kentucky, a trial court
reviewing a request for expert assistance must consider (1) whether the request
was pleaded with specificity; (2) whether the funding is reasonably necessary;
and (3) whether due process weighs in favor of appointing an expert.49 The
46 266 S.W.3d 775, 789 (Ky. 2008). 47 470 U.S. at 70. 48Caldwell v. Mississippi, 472 U.S. 320, 324 (1985); St. Clair v. Commonwealth, 140 S.W.3d 510, 530 (Ky. 2004). 49 See Benjamin, 266 S.W.3d at 789.
19 purpose behind this heightened showing is to filter out “fishing expeditions”
from cases presenting legitimate due process concerns.50
Although the Benjamin test arises from the criminal context, the decision
presents a useful object lesson in how a court should accommodate a liberty
interest amidst the risk of significant burden upon state resources.
Specifically, Benjamin’s dual requirements of specificity and necessity guide a
court’s inquiry into the third Matthews factor by forcing litigants to confine the
scope of their request. This guidance should similarly provide more clarity to
both trial courts and parents as to what must be shown before a parent is
entitled to expert assistance.
Applying Benjamin to the DNA context, a parent must include the
following in their request for expert assistance. At the threshold, a parent
must show in specific terms that medical or other expert testimony or
assistance is likely to play a significant role in the adjudication of dependency,
neglect, and abuse. In doing so, the parent must demonstrate how an expert
would help her case. The request must contain more than a general
affirmation that a medical or other expert would help. The requesting parent
must specify the type of expert and explain why that expert is needed in light of
the particular allegations of neglect or abuse set forth in the petition.
In considering the parent’s request, the trial court should focus on the
risk of erroneous deprivation posed by the expert’s absence. The court should
50 See St Clair, 140 S.W.3d at 530.
20 consider the volume and complexity of the medical or other evidence involved
in the case. Additionally, the court should consider whether the medical or
other evidence is likely to be a significant factor in the determination of neglect
or abuse. In cases where there is significant lay witness testimony concerning
the allegations or the nature of the injuries clearly suggests physical harm, the
aid of an appointed expert is less likely to be necessary. In any event, the trial
court should set out in specific terms on the record its reasons for approving or
denying a parent’s request. Appellate review of such a determination, as is the
case in the criminal context, will be for abuse of discretion and limited to the
reasons presented to the trial court.51
D. SEPARATION OF POWERS
Finally, the Cabinet contends that requiring the Commonwealth to pay
for an indigent parent’s expert violates separation of powers. Yet, the Cabinet
concedes that the separation of powers doctrine does not prevent a court from
assessing fees when due process so requires.52 Indeed, this must be so. Due
process is a constitutional matter.53 And it is firmly the responsibility of the
Judicial Branch to ensure that proceedings in Kentucky courts are conducted
in accordance with this constitutional guarantee. Our concern is that indigent
parents have access to the means necessary to meaningfully participate in
51 See McKinney v. Commonwealth, 60 S.W.3d 499, 505 (Ky. 2001). 52 See G.G.L v. Cabinet for Human Res., 686 S.W.2d 826 (Ky. App. 1985) (affirming order directing Cabinet to pay for bus fees to aid indigent parents to travel to termination of parental rights hearing because of the significant due process right to be present at the hearing.). 53 See Loudermill, 470 U.S. at 541.
21 child welfare proceedings. So long as the General Assembly abides by the
constitutional principles set forth in this decision, it is, of course, free to
implement this right in a manner it sees fit.
III. CONCLUSION
On the record before us, it is clear that medical evidence—specifically the
findings of the CARE team and the testimony of Dr. Cody Penrod—played a
determinative role in the outcome of this case. At the adjudication hearing, the
sole evidence of abuse presented by the Cabinet were the findings of the
Vanderbilt CARE team. Dr. Penrod noted that medical imaging showed that
L.M. had a subdural hematoma and may once have had a rib fracture. While
this evidence presented credible indications of physical harm to L.M., the
Cabinet’s primary argument as to causation relied upon a negative inference.
Essentially, Dr. Penrod testified that a three-month old was unlikely to self-
incur such harm and determined the parent’s absence an explanation to be
suspect. While this may be true, it is unclear how, without an expert, parents
could have countered that testimony with anything more than supposition.
Moreover, at oral argument, counsel for mother indicated that there was a
history of brain bleeds on Father’s side that, without an expert, went
unexplored.
Finally, we note that the trial court initially agreed with the parents that
an expert was needed. Based on this determination, the court reached out to
medical personnel and the Cabinet for assistance. The court’s subsequent
22 denial of parent’s request came after both the Pediatric Medical Team and the
Cabinet refused to assist.
Taken together, the parent’s arguments regarding the need for expert
testimony merit further consideration. Accordingly, we reverse the Court of
Appeals’ holding in so far as it relies on KRS 620.100, but affirm the court’s
reversal of the family court on constitutional grounds. We remand these for
new DNA proceedings with instructions that the family court analyze the need
for expert assistance prior to adjudication consistent with this opinion.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Tiffany L. Yahr Mona Sabie Womack Assistant Counsel, Cabinet for Health & Family Services
COUNSEL FOR APPELLEES:
John Alderdice Amy R. Roos Murray, Kentucky