COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND CHILDREN) v. HONORABLE JOAN BYER, JUDGE, JEFFERSON FAMILY COURT; D.A.; BRYAN GATEWOOD; K.A.; L.M.; AND IRV MAZE, JEFFERSON COUNTY ATTORNEY
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RENDERED:
AUGUST 26, 2005; 2:00 P.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2003-CA-002677-ME
COMMONWEALTH OF KENTUCKY, CABINET
FOR HEALTH AND FAMILY SERVICES
(FORMERLY CABINET FOR FAMILIES
AND CHILDREN)
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE JOAN BYER, JUDGE
ACTION NO. 01-FC-001220
v.
HONORABLE JOAN BYER, JUDGE,
JEFFERSON FAMILY COURT;
D.A.; BRYAN GATEWOOD;
K.A.; L.M.; AND IRV MAZE,
JEFFERSON COUNTY ATTORNEY
APPELLEES
OPINION
REVERSING
** ** ** ** **
BEFORE:
GUIDUGLI, JOHNSON, AND MINTON, JUDGES.
MINTON, JUDGE:
The Cabinet for Health and Family Services (“the
Cabinet”) appeals an order of the Jefferson Family Court that
required it to pay the court-appointed expert’s fees in a
dependency action in which custody became a contested issue.
We hold that the family court abused its discretion when it
appointed the expert without first adopting the show cause
procedure required by KRE 1 706.
Therefore, we reverse the family
court’s order.
The Cabinet filed a dependency action alleging that
D.A., a minor child, was an abused or neglected child within the
meaning of KRS 2 600.020(1).
According to the petition, D.A.’s
mother, K.A., was not properly feeding and caring for her child.
As a result of the petition, temporary custody of D.A. was given
to her maternal grandmother.
At the hearing on the petition,
K.A. stipulated that D.A. was indeed abused and neglected.
K.A.
further agreed not to contest the child’s temporary placement
with the maternal grandmother.
A few months later, the court determined following a
hearing that neither K.A. nor the maternal grandmother was a
proper custodian; so the court removed the child from the
maternal grandmother and placed her temporarily with the
Cabinet.
The following day, the court sustained the Cabinet’s
motion to release custody from the Cabinet to L.M., a nonrelative who had been D.A.’s caregiver since birth.
Several months later, K.A. moved for custody of D.A.
to be returned to her or for increased visitation; L.M. then
moved for permanent custody of D.A.
A complete hearing on these
motions was postponed several times as K.A., L.M., and the
1
Kentucky Rules of Evidence.
2
Kentucky Revised Statutes.
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Cabinet reached an agreement acceptable to the court for
expanded visitation by K.A.
Eventually, a hearing on the
pending custody motions was held on October 9, 2003.
The
Cabinet’s representative, Carlanda Fields, failed to appear at
the hearing because she was involved in an automobile accident
earlier that day.
Despite the Cabinet’s absence, the court
proceeded to appoint its own expert, Dr. Ronda Luttrell, to
perform an assessment of the level of bonding between the child
and the custody contestants and to report back to the court.
The court further ordered the Cabinet in its absence to provide
the funding for the expert.
The Cabinet immediately moved to alter, amend or
vacate the order.
The motion was based on the Cabinet’s claim
that it was not a party to the action and had not been served
with legal notice of a request for imposition of costs.
The
Cabinet also argued that the order violated the constitutional
separation of powers doctrine and statutory law.
At the hearing on this motion, the court stated it was
forced to appoint its own expert witness to perform the
custodial evaluations because none of the evaluators in
Louisville under contract with the Cabinet were “competent” to
perform a “bonding assessment.”
The court acknowledged that
there was a capable evaluator under contract with the Cabinet in
Lexington; but because the Cabinet’s representative failed to
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attend the October 9, 2003, hearing, the availability of that
evaluator was not brought to the court’s attention. 3
Therefore,
the court stated it had no choice but to order the contestants
to meet with Dr. Luttrell, an evaluator who, in the court’s
opinion, was competent to perform a bonding assessment.
Citing
its right to hire its own experts, the court denied the
Cabinet’s motion and ordered the Cabinet to pay Dr. Luttrell’s
fees in the amount of $1,500.
This appeal follows.
Because this appeal involves an issue of law, our
standard of review is limited to whether the family court abused
its discretion.
“The test for abuse of discretion is whether
the trial judge’s decision was arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.” 4
As an initial matter, the Cabinet argues that “once
the trial court removed [D.A.] from the Cabinet’s custody the
Cabinet in essence became a nominal party to the custody contest
between the appellees, [L.M.] and [K.A.].”
Because of its
status as a “nominal party,” the Cabinet claims it “should not
have been ordered to pay costs associated with the contest.”
3
Although the court initially blamed the Cabinet’s representative for
her absence on the day of the hearing, it was quickly brought to the
court’s attention that the representative’s absence was
unintentional and due to her involvement in a car accident.
4
Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.
2000).
-4-
We disagree with this assertion, in part.
In Cabinet
for Human Resources v. Howard, we said that when the Cabinet
files a dependency action, “the Cabinet is in fact the
‘plaintiff[.]’” 5
The current custody dispute started in court
with the Cabinet’s initial filing of a dependency action;
therefore, we believe the Cabinet remains the plaintiff in this
case.
Although the Cabinet is not D.A.’s custodian, it has
continued to play a significant role throughout these
proceedings.
The Cabinet is required to have a representative
at the custody hearings, to monitor D.A.’s environment, to
assess L.M. and K.A.’s parenting skills, and to report to the
court on the parties’ progress.
So we reject the Cabinet’s
contention that it is merely a “nominal party” here.
But we do agree with the Cabinet that it was
improperly assessed the fees for the custodial evaluation.
Our
conclusion is based not on the Cabinet’s status as a party, but
rather on the family court’s failure to follow KRE 706(a).
rule reads:
The court may on its own motion or on the
motion of any party enter an order to show
cause why expert witnesses should not be
appointed, and may require the parties to
submit nominations. The court may appoint
any expert witnesses agreed upon by the
parties, and may appoint expert witnesses of
its own selection. (Emphasis added.)
5
705 S.W.2d 935, 937 (Ky.App. 1985).
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That
There is no reported case in our jurisdiction
interpreting KRE 706(a).
rule seems clear:
But the procedural safeguard in the
without impinging on the court’s inherent
authority to make the final selection, the court must first
adopt a show cause procedure for the appointment of experts.
This guarantees that the parties will have notice that the
process is in motion and an opportunity to advise the trial
court and to comment on the selection of the court-appointed
expert.
The Cabinet argues that given notice and an
opportunity to be heard, it could have nominated competent
evaluators who were under contract with the Cabinet.
Unfortunately, the record does not contain a transcript or
videotape of the October 9, 2003, hearing.
But from what we can
glean from the record, the court acted upon its own motion in
ordering the evaluation by Dr. Luttrell.
An order was entered
to that effect, and the contestants proceeded with the custodial
evaluation.
No show cause order process preceded the
appointment of the expert, nor was the Cabinet notified of the
court’s appointment until after the evaluations were complete.
The Cabinet received the court’s order and the bill for the
custodial evaluation several days after the evaluation had
occurred.
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The family court failed to observe the procedural
safeguards of KRE 706(a) by neglecting to issue a show cause
order before appointing its own expert.
We believe this
resulted in a decision that was “arbitrary, unreasonable,
unfair, [and] unsupported by sound legal principles.” 6
And
because the court abused its discretion, we must reverse the
order requiring the Cabinet to pay the fees of the courtappointed expert.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
G. Thomas Mercer
Louisville, Kentucky
No Brief Filed
6
Goodyear at 581.
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