Kentucky Court of Appeals upholds Jefferson Family Court order requiring Cabinet to pay for parents’ expert fees in DNA case with medical issue at center

Cabinet for Health and Family Services v. Jefferson County Attorney’s Office; C.B.; D.B.; and E.B., a minor child, No. 2022-CA-0570-ME

Jefferson Circuit Court

Parents took infant Child to the hospital after he fell off a couch and hit his head on the floor. The Cabinet was alerted to bruising around Child’s ears and four months later, a DNA petition naming Parents was filed. The petition noted that Cabinet had consulted two physicians who indicated the bruising was indicative of physical abuse. Parents asserted that Child’s bruising stemmed from a medical condition called Von Willebrand Disease, in which blood does not clot properly and bruising occurs easily. Through their privately retained counsel, Parents asked the family court to order that Cabinet provide funds so Parents could retain an expert. The motion did not specify what type of expert they wished to retain and they did not submit affidavits of indigency, but their motions did asserted that Mother was not employed outside the home, Father worked earning $19 per hour, and they owned no assets that they could sell to retain an expert. The family court granted the motion, providing an extremely terse ruling. Cabinet filed a motion to vacate, asserting Parents’ motion was flawed because it did not discuss the type of expert Parents wished to retain and it inadequately showed Parents to be indigent. Cabinet also argued the family court’s findings were inadequate. The family court held a hearing on Cabinet’s motion where counsel for Parents stated they wished to retain an expert who was board certified in hematology but did not give a specific identity of the desired expert. The family court issued another terse order with some additional reasoning, concluding that Parents were entitled to state funds to retain an expert. Though brief, the order found that $10,000 was a reasonable amount for Cabinet to provide to the parents for their expert. Additionally, Parents submitted affidavits of indigency after the hearing. The family court then signed orders finding Parents indigent. Cabinet filed this expedited appeal.

First, the Court of Appeals examined whether an interlocutory appeal was proper in this case. In determining that it was, the Court applied the collateral order doctrine laid out in Childers v. Albright, 636 S.W.3d 523 (Ky. 2021). Then, the Court held that the family court did not abuse its discretion in granting the parent’s motion requiring Cabinet to pay their expert’s fees up to $10,000. The Court relied on Cabinet for Health & Family Services v. K.S., 610 S.W.3d 205 (Ky. 2020) which held that indigent parents in a DNA action have a constitutional right to state funds to retain an expert in cases involving complex issues of medical evidence where such evidence may be vital in understanding the relevant issues. The motion by indigent parents must consider whether the request was pleaded with specificity, whether the funding is reasonably necessary and whether due process weighs in favor of appointing the expert.

The Court found that Parents did not have to specify the identity of the expert that they wished to hire, and that their oral statement of the type of expert (hematologist) at a hearing on Cabinet’s motion to vacate was specifically sufficient. The Court stated that the family court did not abuse its discretion in ruling that the providence of state funds for the expert was reasonably necessary, since Parents maintained the Child’s bruising resulted not from abuse, but from a medical condition. The Court addressed Cabinet’s argument that Parents did not demonstrate their indigency sufficiently, and stated that though Parents had hired private counsel, their proof of their indigency was uncontradicted, so the family court had not abused its discretion in finding them to be so. Finally, the Court found that due process weighed in favor of apportioning state funds for an expert in this case on fundamental fairness considerations, since Cabinet had the opportunity to consult with experts prior to the filing of the DNA petition. The Court concluded that although K.S. requires a trial court to specifically state its reasons for approving or denying a parent’s request, the terse order issued by the Jefferson Family Court after its hearing on Cabinet’s motion to vacate adequately explained the basis for its decision.

Carter Anderson

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