Cabinet for Health and Family Services May Appeal from Order Requiring Public Funds for Expert Witness in Dependency, Neglect, and Abuse Cases; Family Court Affirmed in Granting Motion for Public Funds

Issue: Whether the Cabinet for Health and Family Services may appeal from an order requiring it to pay expert witness fees to indigent parents in a dependency, neglect, and abuse action.

Issue: Whether the court erred in requiring the Cabinet for Health and Family Services to pay expert witness fees.

As part of a dependency, neglect, and abuse action, Family Court entered an order requiring the Cabinet for Health and Family Services (“the Cabinet”) to pay for a hematology expert witness for parents Family Court found to be indigent. The Cabinet appealed this order.

The Court of Appeals first analyzed whether it had jurisdiction to hear the matter, as the order requiring the payment of fees was an interlocutory order. The Court of Appeals held that it did have jurisdiction to hear the matter, because the collateral order doctrine applied, which requires that the interlocutory order must (1) conclusively decide an important issue separate from the merits of the case; (2) be effectively unreviewable following final judgment; and (3) involve a substantial public interest that would be imperiled absent an immediate appeal. The doctrine applied, the Court of Appeals stated, because (1) the matter involved the need for complex medical evidence, and without funding, the parents may suffer an erroneous deprivation; (2) there is no meaningful way for the Court of Appeals to review the matter on appeal after final judgment because there is no way for the Cabinet to “claw back” the funds it expended; and (3) because the issue involves using the public coffers to pay for parents’ expert witness.

The Court of Appeals next analyzed the merits of the appeal and whether Family Court erred in granting the motion for expert witness fees. It held that Family Court did not so err. Upon such a motion, a court 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. (1) Although the parents did not specify the specific expert they wished to retain, they did specify the type of expert, though orally, that they wished to retain. The Court of Appeals noted that identity of the expert is not required for the request. (2) The Court of Appeals found that Family Court was correct in finding that the funds were reasonably necessary, as it was necessary for the Cabinet, itself, to consult an expert before bringing the petition, and the issues involved are medically complex. (3) Because the Cabinet needed to consult an expert before bringing its petition, the Court of Appeals found that it was fundamentally fair that the parents be able to hire an expert. Furthermore, it is fundamentally fair because the parents have unique liberty interest in the custody of their child. Thus, the Court of Appeals held that Family Court did not abuse its discretion in requiring the Cabinet to pay the expert witness fees.

Digested by Nathan R. Hardymon