Commonwealth of Kentucky, Cabinet for Health and Family Services v. K. S.

RENDERED: OCTOBER 29, 2020
TO BE PUBLISHED

Supreme Court of Kentucky
2019-SC-0692-DGE

CABINET FOR HEALTH & FAMILY APPELLANTS
SERVICES, COMMONWEALTH OF
KENTUCKY

V. 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

K.S., MOTHER APPELLEES
L.M., FATHER

OPINION OF THE COURT BY JUSTICE LAMBERT

AFFIRMING IN PART AND REVERSING IN PART

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 KRS1 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.

1 Kentucky Revised Statute
 I. FACTUAL BACKGROUND

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.

2
 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

2 Order of March 8th, 2017, Case Nos: 16-J-0150-001 and 16-J-0151-001.

3
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,

4
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.

II. ANALYSIS

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

3 266 S.W.3d 775 (Ky. 2008).

5
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

See e.g., KRS 620.100(1)(b)(dependency, neglect, and abuse proceedings); KRS
4

625.080(3)(involuntary termination of parental rights proceedings); KRS 199.502(non-
consensual adoption proceedings).
5 KRS 620.100(1)(b).
6 Garrard Cty. v. Middleton, 520 S.W.3d 746, 748 (Ky. 2017).
7 Id. at 750 (citing Owen v. Univ. of Kentucky, 486 S.W.3d 266, 270 (Ky. 2016)
(“[T]he first rule [of statutory construction] is that the text of the statute is supreme”).
8 Bailey v. Reeves, 662 S.W.2d 832, 834 (Ky. 1984)(“We have a duty to accord to

words of a statute their literal meaning unless to do so would lead to an absurd or
wholly unreasonable conclusion.”).
9 Kentucky Props. Holding LLC v. Sproul, 507 S.W.3d 563 (Ky. 2016).
10 MERRIAM–WEBSTER DICTIONARY (online ed.); see also pursuant to, BLACK’S LAW

DICTIONARY (11th Edition 2019) (“in compliance with” or “in accordance with”).

6
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.

11 See KRS 31.110(1)(b).

7
 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 right to counsel for

indigent parties:

• KRS 199.502(3), governing petitions for adoption where the

biological parent does not consent, states: “[the Court] shall

determine if the [biological parent] is indigent and, therefore,

entitled to counsel pursuant to KRS Chapter 31.

• KRS 625.080(3), governing involuntary termination of parental

rights cases, states: “[the Court] shall determine if the parent is

indigent and, therefore, entitled to counsel pursuant to KRS

Chapter 31”.

• KRS 625.0405(1), governing voluntary termination of parental

rights cases, states: “if the court determines pursuant to KRS

Chapter 31 that the requesting parent is indigent, the court shall

appoint an attorney … to represent the parent.”

Outside of the parental rights setting, the General Assembly uses similar

language for the purpose of determining whether a litigant is indigent. KRS

534.030 states that fines shall not be imposed “upon any person determined to

12 See Jefferson Cty. Bd. of Ed. v. Fell, 391 S.W.3d 713 (Ky. 2012)(“The
particular word, sentence, or subsection under review must also be viewed in
context…other relevant parts of the legislative act must be considered in determining
the legislative intent.”).

8
be indigent pursuant to KRS Chapter 31.”13 The common thread binding each

of these provisions is the use of the provisions of KRS Chapter 31 to determine

if a party cannot afford counsel. Put simply, these statutes use the language

“pursuant to Chapter 31” to point Courts towards a body of rules they should

use to determine if a party is indigent; they do not indicate a broader

incorporation of KRS Chapter 31.

In sum, the phrase “pursuant to Chapter 31” when used in the context of

the right-to-counsel provisions of the Unified Juvenile Code carries with it a

consistent meaning. The phrase as used in KRS 620.100(1)(b) incorporates

only those provisions of KRS Chapter 31 necessary to determine if a litigant is

indigent. We hold, therefore, that KRS 620.100(1)(b) does not entitle an

indigent parent to state-funded expert assistance.

B. DUE PROCESS IN PARENTAL RIGHTS PROCEEDINGS

Next, we consider whether the due process provisions of the Kentucky

and United States Constitutions require indigent parents receive access to

expert assistance in dependency, neglect, and abuse cases.14 We hold that,

under certain circumstances, parents are entitled to reasonably necessary

13KRS 530.030(4)(emphasis added); see also KRS 530.040 (including the same
language in the statute concerning misdemeanors and violations).
14 Before the Court of Appeals, Mother framed her due process argument as a
violation of her Sixth Amendment rights. The Sixth Amendment, however, only
applies to criminal cases. See e.g., Turner v. Rogers, 562 U.S. 431 (2011).
Nevertheless, the Court of Appeals implicitly adopted a due process analysis by
incorporating the test of Benjamin v. Commonwealth, 266 S.W.3d 775, 789 (Ky. 2008),
which relies on principles of due process. As such, we consider the issue independent
of the statutory claim.

9
expert assistance. That determination, however, is best left to the discretion of

the trial court on a case-by-case basis, subject to appellate review.

Section 1 of the Kentucky Constitution provides that all citizens “are, by

nature, free and equal, and have certain inherent and inalienable rights,”

including “the right of enjoying and defending their lives and liberties.”15

Section 1 affirms that all citizens of the Commonwealth enjoy certain

fundamental rights.16 Section 2 of the Kentucky Constitution, in turn, helps

ensure that guarantee of individual liberty by forbidding the Commonwealth

from exercising “absolute and arbitrary power over the lives, liberty and

property” of its citizens.17 This prohibition against arbitrary state action

includes a guarantee of procedural due process at least as protective as its

federal counterpart.18 And principles of due process arising under both

constitutions dictate that the Commonwealth must provide fair procedures

when it seeks to deprive a citizen of a liberty interest.19

15 KY. CONST. §1.

16 See Commonwealth v. Wasson, 842 S.W.2d 487 (1992).

17 KY. CONST. §2.
18 See e.g., Commonwealth Nat. Res. & Envtl. Prot. Cabinet v. Kentec Coal Co.,
177 S.W.3d 718, 735 (Ky. 2005) (applying the federal due process framework to a
claim brought under both the Fourteenth Amendment and Section 2); Transp. Cabinet
v. Cassity, 912 S.W.2d 48, 51 (Ky. 1995).
19 See e.g., TECO Mechanical Contractor, Inc. v. Commonwealth, 366 S.W.3d 386,

393 (Ky. 2012); Mahoney v. Carter, 938. S.W.2d 575, 576 (Ky. 1997).

10
 It is well-established that a parent’s right to custody of his or her

children is a protected liberty interest.20 A parent’s right to the

“companionship, care, custody, and management of his or her children …

undeniably warrants deference and, absent a powerful countervailing interest,

protection.”21 As such, when the Commonwealth moves to intervene in the

parent-child relationship, it “must provide the parents with fundamentally fair

procedures.”22

Two strands of case law—one federal and one unique to Kentucky—

define the scope of procedural protections afforded to parents in child welfare

proceedings. First, numerous United States Supreme Court decisions stress

that child welfare proceedings must adequately safeguard his or her

fundamental interest in raising his or her child. In Stanley v. Illinois, the Court

held that due process requires the State to demonstrate that a parent is unfit

before placing his child in foster care.23 Similarly, in Santosky v. Kramer, the

Court held that due process requires the State to demonstrate that a parent

was unfit by clear and convincing evidence before permanently terminating the

20See e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000)( (“The liberty interest ... of
parents in the care, custody, and control of their children—is perhaps the oldest of the
fundamental liberty interests recognized by this Court.”); Morgan v. Getter, 441 S.W.3d
94, 111-12 (Ky. 2014).
Cabinet for Health and Family Serv. v. K.H., 423 S.W.3d 204, 209 (Ky.
21

2014)(quoting Santosky v. Kramer, 455 U.S. 745, 753 (1982)).
22 Id.
23 405 U.S. 645 (1972)(holding unconstitutional a presumption that unmarried

fathers are unfit).

11
parent-child relationship.24 At the core of each decision lie the unique status

of a parent’s liberty interest in the custody of his or her children.25

However, not all cases warrant the same degree of procedural protection.

For instance, in Lassiter v. Department of Social Services, the Court held that

parents do not have an absolute right to counsel in termination of parental

rights cases.26 In doing so, the Court reasoned that due process does not lend

itself to categorical rules, stating that “[due process] is not a technical

conception with a fixed content unrelated to time, place, and circumstances.”27

Accordingly, the Court determined the question of whether due process

requires appointed counsel should be “answered in the first instance by the

trial court,” taking into consideration the specific circumstances of the parties

and the facts of the case at hand.28

Kentucky, by statute, furnishes indigent parents with a categorical right

to counsel in several child welfare proceedings.29 The Cabinet asserts that this

fact should foreclose any further consideration of due process. Essentially, it

claims that because KRS 620.100(1)(b) already gives indigent parents more

24 455 U.S. 745 (1982).
25 See Id. at 758-59 (“[It is] plain beyond the need for multiple citation that a
natural parent’s desire for and right to the companionship, care, custody, and
management of his or her children is an interest far more precious than any property
right.”)(internal quotations omitted).
26 452 U.S. 18, 31-32 (1981).
27 Id. at 24-25.
28 Id at 31-32.
29See e.g., KRS 620.100(1)(b) (dependency, neglect, and abuse proceedings);
KRS 625.080(3)(involuntary termination of parental rights proceedings); KRS
199.502(non-consensual adoption proceedings).

12
process than is due under the Federal Constitution, further procedural

protections may derive only from the statute itself. This argument, however,

contravenes well-established principles of due process. The question of what

procedures are necessary to protect a right is a question of constitutional law

for a judge, not a question to be determined by state legislatures.30 So the fact

that the General Assembly decided to supply litigants with more process than

is constitutionally required in one context does not insulate child welfare

proceedings from further constitutional scrutiny.

In fact, multiple Kentucky cases provide more protection to indigent

parents than is required either by the Federal Constitution or by the relevant

statutory provisions of the Juvenile Code. For example, in R.V. v. Com. Dept.

for Health and Family Services, the Court of Appeals held that the due process

clause, as well as KRS 625.080(3) and KRS 620.100(1), require indigent

parents to be represented at “every critical stage of the proceedings …

[including] all critical stages of the underlying dependency proceeding.”31

There, while both parents were represented by appointed counsel throughout

the adjudication of the dependency action, the trial court relieved appointed

counsel before subsequent permanency and goal change hearings. During

those hearings, the trial court entered erroneous factual findings regarding the

30 See Cleveland Bd of Ed. v. Loudermill, 470 U.S. 532, 541 (1985) (“[T]he right
to due process is conferred, not by legislative grace, but by constitutional guarantee”).
31 242 S.W.3d 669, 672-73 (Ky. App. 2007).

13
length of time the child had been in foster care and the Cabinet changed its

goal from returning the child to permanent foster care placement.

In reversing the termination of parental rights, the Court of Appeals

recognized the significant impact of DNA proceedings on a parent’s liberty

interest:

Kentucky's statutory scheme to protect children and to adjudicate
parental rights provides a continuum of proceedings, even though a
dependency action is not required prior to the filing of a termination
petition. Clearly, the proceedings in a dependency action greatly
affect any subsequent termination proceeding.32

Based on this observation, the R.V. court correctly reasoned that due

process required further protection. In this manner, the court found a

constitutional right to counsel at proceedings not explicitly covered by Lassiter

or KRS 620.100.

Likewise, in Z.T. v. M.T.33, the Court of Appeals built on the R.V. decision,

holding that an indigent parent may bring a claim for ineffective assistance of

counsel against her appointed counsel in a DNA proceeding. While the court

expressed caution in allowing these claims, the court found it “logical that the

parent’s right to counsel includes effective representation.”34 Thus the Court

concluded that “if counsel’s errors were so serious that it is apparent from the

record that the parent was denied a fair and meaningful opportunity to be

32 Id.

33 258 S.W.3d 31 (Ky. App. 2008).

34 Id. at 36.

14
heard so that due process was denied, this Court will consider a claim that

counsel was ineffective.”35

Certain general principles emerge from these cases. First, a parent’s

right to custody and care of his or her children is a uniquely important liberty

interest. Second, federal and state courts, in response to the special nature of

this liberty interest, impart significant procedural protections to parents in

child welfare proceedings. While these procedures are less protective than

criminal proceedings in which physical liberty is at stake, they are more

significant than cases involving property rights.36 Third, process depends on

context. The foundational principle of procedural due process—fundamental

fairness—requires courts to resist mechanical application of its prior case law.

Instead, courts must appraise the value of specific procedures in light of the

particular facts of the case. Kentucky case law, in reaching beyond Lassiter in

certain circumstances, adheres to this foundational principle.

With these principles in mind, we address the question of expert funding.

Kentucky case law is largely silent on the issue.37 Courts in three other states

35 Id.
36 Cf. Ake v. Oklahoma, 470 U.S. 68, 76 (1985)(identifying that a paternity
action is “quasi-criminal” in nature and that prior holdings extend greater procedural
protections to litigants in such actions); Kramer, 455 U.S. at 758-59 (holding that a
higher burden of proof is required in termination of parental rights proceedings than
ordinary civil actions).

37 This issue came before the court recently in H.C. v. Cabinet for Health &
Family Serv., No. 2018-CA-000164-ME, 2018 WL 3957101 (Aug. 17, 2018). We did
not reach the merits, however, because reversal was warranted on procedural
grounds.

15
have recognized a right to appointed experts in child welfare proceedings.38

Mother contends that the due process principles arising from R.V. and Z.T.

similarly require the Commonwealth to provide funding when expert testimony

is reasonably necessary. To determine whether fundamental fairness

necessitates certain procedural protections, we look to the analytical

framework set out in Matthews v. Eldridge.39

Matthews requires the balancing of three factors: (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.40 First, the private

interest. As summarized above, decades of federal and state case law

foreground the strength of the private interest in this case. Moreover, while we

acknowledge that DNA proceedings do not permanently remove children from

their parents; children may be placed in foster care for several months at a

time while a DNA case is pending.41 Temporary or not, that is a significant

38 State ex rel. Children Youth & Families Dep't v. Kathleen D.C., 141 N.M. 535,
157 P.3d 714, 719 (2007)(“[I]n certain circumstances, due process may require the
appointment of an expert witness at the State's expense to an indigent parent in a
neglect and abuse proceeding.”); In re Yarbrough Minors, 885 N.W.2d 878, 890-92
(Mich. App 2016) (holding that due process may require appointed experts in
termination of parental rights proceedings); In re Shaeffer Children, 621 N.E.2d 426,
431 (Oh. App.1993)(stating that due process requires the appointment of a psychiatric
expert in certain permanent custody proceedings). But see In re J.T.G., 121 S.W.3d
117, 130 (Tex. App.2003) (declining invitation to extend Ake to parental termination
cases).
39 424 U.S. 319 (1976).
40 Id. at 335.
41 Here, L.M. and D.M. were in foster care for over one year before an

adjudicatory hearing was held.

16
deprivation of liberty. Of course, DNA proceedings may evolve from a

temporary out-of-home placement to permanent custody to a third party or

termination of parental rights and adoption.

Second, we note that the Cabinet’s interest in efficiency is two-fold. Of

course, the Cabinet wishes to expend its resources in as prudent a manner as

possible. That wish is legitimate.42 But the Cabinet’s pecuniary interest alone

does not overcome the significance of a parent’s liberty interest in the

continued care of his or her children.43 Nor is foster care without its financial

cost to the citizens of the Commonwealth. The Cabinet’s interest in efficiency,

however, also stems from the need to ensure the well-being of children.

Drawn-out court proceedings pose the risk of depriving the child of a stable

upbringing and subjecting the child to repeated trauma. The efficient

operation of child-welfare proceedings serves the government’s interest in

assuring the best interests of children in addition to guarding the

Commonwealth’s coffers.

Given the relative strength of the private and public interests, the final

Matthews factor—the impact of additional procedures on accurate fact-

finding—proves determinative. In certain cases, a parent’s ability to

understand and rebut medical testimony may be vital to the outcome of a

42 See Lassiter, 452 U.S. at 28.
43 See Id.

17
case.44 While trained legal counsel is capable of a great deal, lawyers are not

doctors. Nor are judges. In cases presenting complex issues of medical or

psychiatric evidence, consultation with a medical expert strengthens the ability

of counsel to understand the evidence and to cross-examine the experts put on

by the Cabinet. In these cases, lack of availability of a witness with specialized

knowledge increases the risk that a parent may suffer an erroneous

deprivation.

However, we appreciate that many, if not most, DNA proceedings do not

present significant issues of medical proof. In those cases, or cases where

there is visible evidence of abuse or significant witness testimony regarding a

parent’s treatment of the child, expert testimony may serve only to prolong an

otherwise straightforward case.

Therefore, we decline to adopt a per se rule requiring the provision of

funds for expert witnesses in every DNA case. Rather we acknowledge, as the

Lassiter court did, that procedural due process is a flexible concept.45 The

benefit of expert testimony depends upon of the facts presented in a given case.

Thus, the question of whether due process requires a court-appointed expert is

best left to the judgment of the trial court, subject to appellate review. In those

cases, we hold that the due process provisions of the federal and state

44 See Lassiter, 452 U.S. at 30 (“Expert medical and psychiatric testimony,

which few parents are equipped to understand and fewer still to confute, is sometimes
presented.”).
45 Id. at 24-25.

18
constitutions require the Commonwealth to provide indigent parents with the

assistance of an expert.

C. BENJAMIN IN THE CONTEXT OF DNA PROCEEDINGS

Balancing tests like the Matthews framework place significant discretion

in the trial court. Absent certain guideposts, courts applying a balancing test

risk the appearance of deciding cases in an ad hoc fashion. Thankfully,

Kentucky law, via Benjamin v. Commonwealth,46 supplies a test more narrowly

tailored to the context of expert funding.

Benjamin flows from the United States Supreme Court’s decision in Ake

v. Oklahoma.47 Ake held that a state must provide access to a psychiatric

expert when the defendant makes a threshold showing that his mental state is

likely to be a significant issue. In a later decision, the Court clarified that a

defendant must provide more than “underdeveloped assertions that the

requested assistance would be beneficial.”48 In Kentucky, a trial court

reviewing a request for expert assistance must consider (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.49 The

46 266 S.W.3d 775, 789 (Ky. 2008).
47 470 U.S. at 70.
48Caldwell v. Mississippi, 472 U.S. 320, 324 (1985); St. Clair v. Commonwealth,
140 S.W.3d 510, 530 (Ky. 2004).
49 See Benjamin, 266 S.W.3d at 789.

19
purpose behind this heightened showing is to filter out “fishing expeditions”

from cases presenting legitimate due process concerns.50

Although the Benjamin test arises from the criminal context, the decision

presents a useful object lesson in how a court should accommodate a liberty

interest amidst the risk of significant burden upon state resources.

Specifically, Benjamin’s dual requirements of specificity and necessity guide a

court’s inquiry into the third Matthews factor by forcing litigants to confine the

scope of their request. This guidance should similarly provide more clarity to

both trial courts and parents as to what must be shown before a parent is

entitled to expert assistance.

Applying Benjamin to the DNA context, a parent must include the

following in their request for expert assistance. At the threshold, a parent

must show 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. In doing so, the parent must demonstrate how an expert

would help her case. The request must contain more than a general

affirmation that a medical or other expert would help. The requesting parent

must specify the type of expert and explain 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 focus on the

risk of erroneous deprivation posed by the expert’s absence. The court should

50 See St Clair, 140 S.W.3d at 530.

20
consider the volume and complexity of the medical or other evidence involved

in the case. Additionally, the court should consider whether the medical or

other evidence is likely to be a significant factor in the determination of neglect

or abuse. In cases where there is significant lay witness testimony concerning

the allegations or the nature of the injuries clearly suggests physical harm, the

aid of an appointed expert is less likely to be necessary. In any event, 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, as is the

case in the criminal context, will be for abuse of discretion and limited to the

reasons presented to the trial court.51

D. SEPARATION OF POWERS

Finally, the Cabinet contends that requiring the Commonwealth to pay

for an indigent parent’s expert violates separation of powers. Yet, the Cabinet

concedes that the separation of powers doctrine does not prevent a court from

assessing fees when due process so requires.52 Indeed, this must be so. Due

process is a constitutional matter.53 And it is firmly the responsibility of the

Judicial Branch to ensure that proceedings in Kentucky courts are conducted

in accordance with this constitutional guarantee. Our concern is that indigent

parents have access to the means necessary to meaningfully participate in

51 See McKinney v. Commonwealth, 60 S.W.3d 499, 505 (Ky. 2001).
52 See G.G.L v. Cabinet for Human Res., 686 S.W.2d 826 (Ky. App. 1985)
(affirming order directing Cabinet to pay for bus fees to aid indigent parents to travel
to termination of parental rights hearing because of the significant due process right
to be present at the hearing.).
53 See Loudermill, 470 U.S. at 541.

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child welfare proceedings. So long as the General Assembly abides by the

constitutional principles set forth in this decision, it is, of course, free to

implement this right in a manner it sees fit.

III. CONCLUSION

On the record before us, it is clear that medical evidence—specifically the

findings of the CARE team and the testimony of Dr. Cody Penrod—played a

determinative role in the outcome of this case. At the adjudication hearing, the

sole evidence of abuse presented by the Cabinet were the findings of the

Vanderbilt CARE team. Dr. Penrod noted that medical imaging showed that

L.M. had a subdural hematoma and may once have had a rib fracture. While

this evidence presented credible indications of physical harm to L.M., the

Cabinet’s primary argument as to causation relied upon a negative inference.

Essentially, Dr. Penrod testified that a three-month old was unlikely to self-

incur such harm and determined the parent’s absence an explanation to be

suspect. While this may be true, it is unclear how, without an expert, parents

could have countered that testimony with anything more than supposition.

Moreover, at oral argument, counsel for mother indicated that there was a

history of brain bleeds on Father’s side that, without an expert, went

unexplored.

Finally, we note that the trial court initially agreed with the parents that

an expert was needed. Based on this determination, the court reached out to

medical personnel and the Cabinet for assistance. The court’s subsequent

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denial of parent’s request came after both the Pediatric Medical Team and the

Cabinet refused to assist.

Taken together, the parent’s arguments regarding the need for expert

testimony merit further consideration. Accordingly, we reverse the Court of

Appeals’ holding in so far as it relies on KRS 620.100, but affirm the court’s

reversal of the family court on constitutional grounds. We remand these for

new DNA proceedings with instructions that the family court analyze the need

for expert assistance prior to adjudication consistent with this opinion.

All sitting. All concur.

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

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