FROM CALLOWAY CIRCUIT COURT HONORABLE ROBERT D. MATTINGLY,
JR., JUDGE ACTION NO. 16-J-00151-001, 17-J-00093-001,
16-J-00150-001, 16-J-00151-001, 17-J-00093-001,
FOR APPELLANT, K.S.: John Alderdice Murray, Kentucky
FOR APPELLANT, L.M.: Amy R. Roos Murray, Kentucky
FOR APPELLEE: Casey J. Naber Assistant Calloway County
Attorney Murray, Kentucky
BEFORE: COMBS, DIXON, AND GOODWINE, JUDGES.
case involves six appeals, which have been consolidated for
our review. Appellant, K.S. (Mother), and Appellant, L.M.
(Father), are the biological parents of three minor children.
They have each appealed from adjudication orders of the
Calloway County Circuit Court finding the children to be
neglected or abused. Mother appeals on the ground that the
family court erred in denying her request to appoint a
medical expert. Father's counsel has filed an
Anders brief and a motion to withdraw.
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.
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.
parents requested that the family court appoint a medical
expert for them. By order entered on March 6, 2017, the court
It was agreed at the [pretrial] conference for the court to
appoint the Pediatric Medical Team out of Louisville,
Kentucky to review the findings of Vanderbilt and submit an
assessment. The court has been in contact with Dr. Vinod Rao
from the forensic pediatric team and after he consulted Dr.
Melissa Currie, the court was advised that the team would not
conduct an evaluation of Vanderbilt, nor would they complete
a medical assessment.
The court has also contacted legal counsel for the [Cabinet]
regarding the payment of expert fees for parents in
Dependency, Neglect and Abuse cases to retain their own
medical experts and advised that there is not a statute that
would allow such fees.
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 KRS 600.020(1). An
addendum with findings of fact provides in relevant part:
3. On October 15, 2016, three (3) month old [L.M.] was
brought into the emergency room at Murray-Calloway County
Hospital in respiratory distress and was observed to have
bruising above his right eye. He was later taken to
4.As testified to by the pediatric physician at Vanderbilt
Hospital, Dr. Cody Penrod, the Pediatric Medical Team
assigned to [L.M., ] tests and evaluations disclosed bruising
around the left eye, a left fourth rib fracture in the
process of healing, a recent subdural brain hemorrhage, and a
second older brain hemorrhage.
5.The parents did not present a plausible explanation as to
the possible cause of such injuries . . . .
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');">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 ...