Cabinet for Health & Family Services v. K.S., 102920 KYSC, 2019-SC-0692-DGE

Docket Nº2019-SC-0692-DGE
AttorneyCOUNSEL 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
Case DateOctober 29, 2020
CourtSupreme Court of Kentucky




No. 2019-SC-0692-DGE

Supreme Court of Kentucky

October 29, 2020

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

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



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 KRS[1] 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.


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.

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 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, 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.


A. KRS 620.100(1)(b)

Kentucky law provides indigent parents with a statutory right to counsel in proceedings which threaten their fundamental right to care and custody of 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 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.

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...

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