KRS 620.100(1)(b) Does Not Entitle Indigent Parents to State-Funded Expert Assistance; Due Process Does So Entitle in Certain Circumstances – Published Opinion from Supreme Court of Ky.

Law Books

Cabinet for Health and Family Services, Com. v. K.S.

Questions Presented: Dependency, Neglect and Abuse. Due Process. KRS 31.110(1)(b). Funding for Expert Assistance. Considering whether expert assistance must be provided to indigent parties in dependency, neglect and abuse cases, KRS 31.110(1)(b) does not so entitle an indigent parent to state funded assistance. However, under certain circumstances, parents are entitled to reasonably necessary expert assistance as determined by the trial court on a case-by-case basis.

Calloway Circuit Court

During a dependency, neglect, and abuse (“DNA”) adjudication hearing, Doctor testified that Child had a healed rib fracture and a subdural hematoma, which were consistent with child abuse absent other exculpatory explanation from Child’s parents. Mother presented testimony that such injuries could be caused by difficult vaginal birth. The parents, at a pre-trial conference prior to the adjudication hearing, requested funds to hire a medical expert to review Doctor’s findings. The request was denied, as Circuit Court concluded that the Cabinet for Health and Family Services (“the Cabinet”) lacked statutory authority to provide parents with funds for medical experts. After the adjudication hearing, Circuit Court found the parents’ children to be neglected or abused under the parents’ care. The Cabinet received temporary custody and the parents appealed. 

The Court of Appeals reversed Circuit Court, holding that KRS 620.100(1)(b) granted indigent parents a right to funding for reasonably necessary expert assistance. The Court of Appeals reasoned that the statute’s reference to KRS Chapter 31 supported a contextual right to expert assistance in DNA cases. Thus, the Court of Appeals remanded to Circuit Court to determine whether the parents were entitled to funding for expert assistance. The Cabinet moved for discretionary review, which was granted.

The Kentucky Supreme Court held that KRS 620.100(1)(b) does not entitle an indigent parent to state-funded expert assistance. Kentucky law provides indigent parents a statutory right to counsel in DNA cases, who are paid by the Finance and Administration Cabinet: “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.” “Pursuant to” means “in a way that agrees with or follows (something)” or “in accordance with (something).” “Unable to afford counsel” and “pursuant to Chapter 31” must be construed together given the grammar and structure of the sentence. “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.” It does not indicate a broader incorporation of KRS Chapter 31, which allows for expert funding.

As a matter of due process, however, under certain circumstances, indigent parents are entitled to reasonably necessary expert assistance, a determination which is best left to the discretion of the trial court on a case-by-case basis. Due process requires the Commonwealth to provide fair procedures when it seeks to deprive a citizen of a liberty interest. A parent’s right to custody of his or her children is a protected liberty interest. Federal due process case law does not afford parents an absolute right to counsel in termination of parental rights cases. Kentucky statutorily affords indigents parents this right. This does not necessarily mean that due process has been provided. To determine whether fundamental fairness necessitates further procedural protections, a court should balance the factors in Matthews v. Eldridge, 424 U.S. 319 (1976): (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.

The private interest is the liberty interest of parents to the custody of their children, clearly described in case law. The Cabinet’s interest is two-fold: (1) to expend its resources in a prudent manner, and (2) the need to ensure the well-being of children. “The efficient operation of child-welfare proceedings serves the government’s interest in assuring the best interest of children in addition to guarding the Commonwealth’s coffers.” Because these interests are both strong, the third factor is determinative. In some cases, understanding medical testimony is vital to the outcome of the case. In these cases, lack of availability of an expert witness increases the risk that a parent may suffer an erroneous deprivation. Some cases, however, will have visible evidence of abuse or neglect or significant witness testimony. Thus, a per se rule is not appropriate requiring funds for expert witnesses in every DNA case. The requirement of expert witness funding is fact sensitive, and the decision is best left to the trial court.

In making such a determination, a trial court should consider the factors laid out in Benjamin v. Commonwealth, 266 S.W.3d 775, 789 (Ky. 2008): (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.

In the DNA context, a parent must include the following in their request for expert assistance: (1) a showing 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, demonstrating how an expert would help her case; and (2) more than a general affirmation that a medical or other expert would help, specifying the type of expert and explaining 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 consider (1) the risk of erroneous deprivation posed by the expert’s absence; (2) the volume and complexity of the medical or other evidence involved in the case; and (3) whether the medical or other evidence is likely to be a significant factor in the determination of neglect or abuse. 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 will be for abuse of discretion and limited to the reasons presented to the trial court.

The Supreme Court held that requiring the Commonwealth to pay for a parent’s expert does not violate the separation of powers doctrine. Due process is a constitutional matter, the responsibility of the Judicial Branch. As long as the General Assembly abides by the principles that indigent parents have access to the means to meaningfully participate in child welfare proceedings, it is free to implement the right in a manner it sees fit.

Digested by Nathan R. Hardymon

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