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K.S. v. Commonwealth

Court of Appeals of Kentucky

October 25, 2019

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

          APPEAL 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, 16-J-00150-001

          BRIEFS FOR APPELLANT, K.S.: John Alderdice Murray, Kentucky

          BRIEFS FOR APPELLANT, L.M.: Amy R. Roos Murray, Kentucky

          BRIEF FOR APPELLEE: Casey J. Naber Assistant Calloway County Attorney Murray, Kentucky

          BEFORE: COMBS, DIXON, AND GOODWINE, JUDGES.

          OPINION

          COMBS, JUDGE:

         This 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[1] brief and a motion to withdraw.

         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:

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.

         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 KRS[2] 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 Vanderbilt Hospital.
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 . . . .

         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');">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 ...


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