K.S. v. Commonwealth
| Decision Date | 25 October 2019 |
| Docket Number | NO. 2018-CA-000177-ME,NO. 2018-CA-000173-ME,NO. 2018-CA-000174-ME,NO. 2018-CA-000172-ME,NO. 2018-CA-000175-ME,NO. 2018-CA-000176-ME,2018-CA-000172-ME,2018-CA-000173-ME,2018-CA-000174-ME,2018-CA-000175-ME,2018-CA-000176-ME,2018-CA-000177-ME |
| Parties | K.S., MOTHER APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; COMMONWEALTH OF KENTUCKY, CALLOWAY COUNTY, KENTUCKY; D.M., A MINOR CHILD; AND L.M., FATHER APPELLEES AND K.S., MOTHER APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; COMMONWEALTH OF KENTUCKY, CALLOWAY COUNTY, KENTUCKY; N.M., A MINOR CHILD; AND L.M., FATHER APPELLEES AND K.S., MOTHER APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; COMMONWEALTH OF KENTUCKY, CALLOWAY COUNTY, KENTUCKY; L.M., A MINOR CHILD; AND L.M., FATHER APPELLEES AND L.M., FATHER APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; COMMONWEALTH OF KENTUCKY, CALLOWAY COUNTY, KENTUCKY; D.M., A MINOR CHILD, AND K.S., MOTHER APPELLEES AND L.M., FATHER APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; COMMONWEALTH OF KENTUCKY, CALLOWAY COUNTY, KENTUCKY; N.M., A MINOR CHILD; AND K.S., MOTHER APPELLEES AND L.M., FATHER APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; COMMONWEALTH OF KENTUCKY, CALLOWAY COUNTY, KENTUCKY; L.M., A MINOR CHILD, AND K.S., MOTHER APPELLEES |
| Court | Kentucky Court of Appeals |
TO BE PUBLISHED
APPEAL FROM CALLOWAY CIRCUIT COURT
We refer to the record only as necessary to resolve the issues before us. Mother and Father are the biological parents of three minor children, D.M., born in 2015; L.M., born in 2016; and N.M., born in 2017.
In 2016, the Cabinet filed juvenile dependency, neglect or abuse (DNA) petitions alleging physical abuse of L.M. and risk of harm or neglect to D.M. based upon the alleged physical abuse to L.M. After N.M. was born in 2017, the Cabinet also filed a DNA petition alleging risk of harm to N.M. based upon the alleged physical abuse to L.M. All three children were removed and placed in the temporary custody of the Cabinet.
The parents requested that the family court appoint a medical expert for them. By order entered on March 6, 2017, the court explained that:
On December 4, 2017, the family court conducted an adjudication hearing. Mother and Father appeal from the adjudication orders entered on December 12, 2017, finding that each child was neglected or abused as defined in KRS2 600.020(1). An addendum with findings of fact provides in relevant part:
On appeal, Mother contends that the court erred in denying funds for an independent medical evaluation or expert witness and that "the parents' indigence prevented them from mounting a meaningful defense thus violating their Sixth Amendment rights to due process." Mother likens her case to Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), where the issue was whether and under what circumstances the State must provide an indigent defendant with access to competent psychiatric assistance in preparation of a defense. In Ake, the United States Supreme Court determined that three factors were relevant:
The first is the private interest that will be affected by the action of the State. The second is the governmental interest that will be affected if the safeguard is to be provided. The third is the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided. See Little v. Streater, [452 U.S. 1, 6, 101 S.Ct. 2202, 2205, 68 L.Ed.2d (1981)]; Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).
Id., 470 U.S. at 77, 105 S.Ct. at 1093. The Court held that where the defendant shows that his sanity at the time of the offense will be a significant factor at trial, "the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Id., 470 U.S. at 83, 105 S.Ct. at 1096.
Mother also relies upon Binion v. Commonwealth, 891 S.W.2d 383, 386 (Ky. 1995) (); and Little v. Streater, 452 U.S. 1, 16-17, 101 S.Ct. 2202, 2211, 68 L.Ed.2d 627 (1981) ().
Mother argues that the criteria of KRS Chapter 313 should apply to her case, citing Sommers v. Commonwealth, 843 S.W.2d 879, 885 (Ky. 1992), in which the Kentucky Supreme Court held that the denial of a defense motion for funds to provide assistance of experts was prejudicial error.
The Cabinet argues, inter alia, that the specific issue of the applicability of KRS Chapter 31 was not preserved for review because neither parent's counsel "requested that the Family Court rely on KRS Chapter 31 as a means to issue public funds for any sort of expert witness." However, as the Cabinet acknowledges, Father's counsel orally requested funds at the pretrial conference to hire his own medical expert, and Mother's counsel joined in his request. We consider the issue sufficiently preserved.
Shortly after the parties submitted briefs, another panel of this Court addressed the very issue that Mother raises on appeal. In H.C. v. Cabinet for Health & Family Services, No. 2018-CA-000164-ME, rendered August 17, 2018, the indigent mother appealed from the family court's determination that she was not entitled to funding for an expert witness in a DNA case because there was no statutory mechanism to authorize such funds. In a split decision, this Court held that "upon a finding by the trial court that such expert funding is reasonably necessary to establish a defense to a DNA petition, funding for such expert fees shall be paid pursuant to KRS [31.110](1)(b)." On February 7, 2019, our Supreme Court granted discretionary review. Pending the outcome of the Supreme Court decision, we held these cases informally in abeyance in order to benefit from the guidance of our Supreme Court.
On August 29, 2019, the Supreme Court rendered its decision in Cabinet for Health & Family Services v. H.C., ___ S.W.3d ___, 2019 WL 4073380 (Ky. Aug. 29, 2019), and explained that:
Id. at *2. The Supreme Court held that this Court lacked jurisdiction because H.C.'s appeal was untimely, vacated our decision on that basis alone, and reinstated the order of the family court. However, it never reached the merits of the substantive issue before it. It is now incumbent upon us to decide the issue that Mother has raised without the guidance of the Supreme Court.
KRS 600.010 is Kentucky's Unified Juvenile Code. KRS 600.010(2)(g) declares that "[i]t shall further be the policy of this Commonwealth to provide judicial procedures in which rights and interests of all parties, including the parents and victims, are recognized and all parties are assured prompt and fair hearings." With that policy objective in mind, we turn to the issue before us.
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