Com., Cab. For Health & Family Services v. Byer,
173 SW3d 247 (Ky.App,. 2005)
Cabinet for Health & Family Services was a party to the action
because it initiated dependency action, but trial court order
directing the Cabinet to pay expert witness fees was reversed
because KRE 760(A) requires a court to enter a show cause order
why expert witnesses should not be appointed when the court
desires to appoint its own expert. This process guarantees the
parties will have notice and an opportunity to be heard.
Cabinet for Health and Family Services filed the dependency action. After child was removed and released to a new caregiver, mother moved for custody to be returned. The Cabinet failed to have a representative present at the hearing. The Court appointed its own expert witness to perform the custodial evaluation and ordered the Cabinet to pay for the expert. Upon a Motion to Alter and Amend, the Cabinet claimed it should not have to pay costs because it had evaluators under contract, it was not a party to the action, it had not been served with legal notice of a request for costs, and the Order violated constitutional separation of powers doctrine. The Court of Appeals held that the Cabinet was a party, but agreed that the fees were improperly assessed because a of the Court's failure to follow KRE 706(a), which requires a court to enter an order to show cause why expert witnesses should not be appointed when the court desires to appoint its own expert. This process guarantees the parties will have notice and an opportunity to comment on the selection of the expert. Failure to observe this procedural safeguard was deemed an abuse of discretion and the case was reversed.