(specially concurring).
{21} I concur in Part II.B of the majority opinion, which holds that Mother adequately preserved her due process claim. I also agree that this case requires us to analyze Mother’s claim that she was denied due process under the Mathews test, which we applied to neglect and abuse proceedings in Pamela A.G. And, I agree that this case hinges on whether there is a serious risk to Mother of an erroneous deprivation through the procedures used, and whether there is significant value of additional procedural safeguards. Thus, I concur in the majority’s decision to remand the case to the trial court for further proceedings. However, I write separately for two reasons. One, I would require the indigent parent to specify: (a) how the expert would be useful in relation to the allegations against the parent; (b) the type of expert desired; and (c) why the particular type of expert is necessary. Two, I would also not limit the appointment of an expert to a situation where the parent shows he or she has a testifying expert. The necessity for an expert may include assisting with gathering facts, inspecting evidence, or conducting tests or examinations to assist defense counsel in confronting the State’s case against the parent, including preparing for cross-examining the State’s expert witness and helping to develop a defense theory. I believe our analysis can be guided by Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), a case in which the United States Supreme Court considered whether due process concerns required a trial court to appoint an expert for an indigent defendant.
{22} As a preface to discussing the case law in this area, it is important to summarize CYFD’s expert testimony as to the mechanics of the manual strangulation, which I believe illustrates why Mother may have needed the assistance of her own expert. According to Dr. Campbell, the manual strangulation causing Child’s injury resulted from someone applying simultaneous pressure to both sides of the neck, thereby compressing the carotid arteries and preventing blood flow to the brain. Dr. Campbell testified that to cause the types of injuries Child suffered, someone would have had to apply pressure to Child’s neck for three to five minutes. In sum, Dr. Campbell’s testimony was that Child’s injuries resulted from someone applying enough simultaneous pressure to both carotid arteries for three to five minutes to block the blood flow to Child’s brain, but also lightly enough not to cause bruising, since no bruises were found on Child’s neck. Dr. Campbell also testified that this was the only explanation for Child’s injuries. As the majority opinion recognizes, the cause of Child’s injuries “is a complex issue that is difficult to address without expert assistance,” see Maj. Op. ¶ 15, and this testimony demonstrates why providing Mother with her own expert might have assisted her as she prepared her defense and cross-examination of Dr. Campbell, who was the only expert who testified at the adjudicatory hearing.
{23} There is very little, if any, ease law addressing whether an indigent parent is entitled to an expert to assist in preparing a defense to a neglect and abuse proceeding. At least two cases addressed the issue in the context of a termination of parental rights proceeding, but Ake, and most of the other cases applying Ake, involve criminal proceedings. See In re Shaeffer Children, 85 Ohio App.3d 683, 621 N.E.2d 426, 430-31 (1993) (applying the Mathews test and determining that the parent was entitled to the assistance of a psychiatrist); In re J.T.G., 121 S.W.3d 117, 130 (Tex.App.2003) (declining to extend Ake outside the criminal context). Yet the United States Supreme Court in Ake noted that in a previous case it had extended due process to “quasi-criminal” proceedings, like paternity actions, to afford an indigent person meaningful access to justice. 470 U.S. at 76-77, 105 S.Ct. 1087 (citing Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981)). Because neglect and abuse proceedings are quasi-criminal, I believe it is appropriate to look to Ake, and other criminal cases applying Ake, for guidance.1
{24} In Ake, the defendant asserted a defense of insanity after he shot and killed a couple and wounded their two children. 470 U.S. at 70-72, 105 S.Ct. 1087. Because the defendant could not afford to pay for a psychiatric expert, his counsel asked the court to arrange for a psychiatrist, or to provide funding for defense counsel to do so. Id. at 72, 105 S.Ct. 1087. The trial court denied the request. Id. Therefore, the defendant could not introduce his own expert testimony or rebut the state’s expert testimony that the defendant was dangerous to society. Id. at 73, 105 S.Ct. 1087.
{25} The United States Supreme Court found that indigent defendants must be provided the “basic tools of an adequate defense or appeal” if they cannot afford to pay for them. Id. at 77, 105 S.Ct. 1087 (quoted authority omitted). In applying the Mathews test, the Court determined that “the governmental interest in denying [the defendant] the assistance of a psychiatrist is not substantial, in light of the compelling interest of both the State and the individual in accurate dispositions.” Id. at 79, 105 S.Ct. 1087. In examining the probable value of the assistance sought by the defendant from the expert, and the risk of erroneous deprivation, the Court held that
without the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State’s psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high.
Id. at 82, 105 S.Ct. 1087. The Court further held that if a “defendant is able to make an ex parte threshold showing ... that his sanity is likely to be a significant factor in his defense,” then the trial court should provide a defendant with access to an expert at the State’s expense. Id. at 82-83, 105 S.Ct. 1087.
{26} The United States Supreme Court has not directly addressed the level and specificity of the threshold showing entitling an indigent defendant to an expert’s assistance. However, in Caldwell v. Mississippi, the Court did make clear that the denial of an expert stemming from “undeveloped assertions that the requested assistance would be beneficial” does not result in a deprivation of due process. 472 U.S. 320, 324 n. 1, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).
{27} In Moore v. Kemp, the Eleventh Circuit found “Ake and Caldwell, taken together, hold that a defendant must demonstrate something more than a mere possibility of assistance from a requested expert.” 809 F.2d 702, 712 (11th Cir.1987). The court then determined that an indigent defendant must show there “exists a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial.” Id. (footnote omitted). In making this showing, the court required the defendant to provide the trial court with a description of the usefulness and necessity of an expert in the preparation of a defense. Id. The court required a “substantial showing ... of a significant benefit to the truth-seeking function of a trial.” Id. n. 8.
{28} In Moore v. State, the Maryland Court of Appeals adopted the Eleventh Circuit’s standard for a threshold showing entitling a defendant to an expert, noting that the majority of courts considering the issue had also done so. 390 Md. 343, 889 A.2d 325, 339-40 (2005). The court emphasized that due process requires appointment of an expert “when the defendant makes a particularized showing of the need for assistance of ... experts.” Id. at 339. The court held it unnecessary for a defendant to “display a highly sophisticated understanding of the contribution the requested expert would make to the defense,” but must be able to explain why the requested expert was necessary. Id. at 340.
{29} In my opinion, Ake, as well as case law construing Ake, can help courts determine whether an indigent parent is entitled to the assistance of an expert. Certainly an analysis of the Mathews factors is necessary in our decision, just as the majority opinion holds. But, Ake builds on the Mathews factors and requires an indigent parent to make a threshold showing that the issue at stake is a significant factor in the parent’s defense, thus requiring an expert’s assistance. This aids a court’s determination of whether there is a serious risk of erroneous deprivation and whether there is a significant value of additional procedural safeguards. Because the parent’s interest in maintaining a parental relationship with the child and the government’s interest in protecting the child have equal weight, as noted by the majority opinion, decisions as to whether a defendant is entitled to an expert’s assistance will inevitably turn on the erroneous deprivation factor. As such, I believe utilizing the Ake framework will provide more clarity to trial courts and indigent parents as to the proper showing that is required to entitle a parent to an expert’s assistance.
{30} Concluding, as the majority does, that Mother is entitled to an expert only if she has an expert that can testify as to a viable alternate theory about Child’s injuries may not necessarily be the outcome of an analysis that applies Ake. Under Ake’s framework, Mother is entitled to an expert if she can make a threshold showing to the trial court that the cause of the Child’s injuries is a significant factor in her defense. Mother can do so by demonstrating a reasonable probability that an expert would be of assistance to her and that without an expert’s assistance, Mother’s trial would be fundamentally unfair. See Kemp, 809 F.2d at 712. If Mother meets this burden, then she has demonstrated a reasonable likelihood of a different outcome as required by Pamela AG., and, thus, a serious risk of erroneous deprivation. Such a showing would demonstrate that the assistance of an expert would be of significant value in meeting the due process rights of an indigent parent.
{31} Therefore, I would remand to the trial court and allow Mother an opportunity to establish a threshold showing that she is entitled to an expert’s assistance at the State’s expense. In attempting to establish the requisite showing, Mother should include a specific description of how the expert would be useful in relation to the allegations against her. Additionally, Mother should include a specific description of the type of expert she desires and why that particular type of expert is necessary. Mother is not required to provide the trial court with a detailed analysis of the expert’s assistance, but the parent’s counsel must “inform himself about the specific scientific area in question and [ ] provide the court with as much information as possible concerning the usefulness of the requested expert to the [parent’s] case.” See id.
{32} With respect to the usefulness of an expert, I would also make clear that a parent may demonstrate the usefulness of a defense expert in ways other than simply providing testimony in the case. The majority opinion focuses solely on whether Mother has an expert willing to testify, but experts can assist a parent with a defense in other meaningful ways. See id. at 709-710. This includes fact gathering, examining evidence, or providing other assistance to defense counsel in confronting the State’s ease against the parent. The expert can also help prepare for cross-examining the State’s expert witness, and assist in developing a defense theory. Id. at 709.
{33} In my opinion, this issue is vitally important in abuse and neglect proceedings because determining whether a parent is entitled to the assistance of a court-appointed expert could be the deciding factor in the case. Without an expert’s assistance in certain eases, an innocent parent may be adjudged to have abused or neglected his or her child, which could then lead to the termination of parental rights simply because the parent could not afford an expert. As a result, I believe we must provide a trial court with the appropriate guidance required to make such a crucial decision.
{34} For these reasons, I respectfully specially concur.
I CONCUR: RICHARD C. BOSSON, Justice.. Additionally, although Ake involved the appointment of a psychiatric expert, the majority of courts have determined that Ake applies to non-psychiatric experts as well. Moore v. State, 390 Md. 343, 889 A.2d 325, 337 (2005).