Opinion
02 Cr. 1529 (BSJ)
January 28, 2004
Opinion
Defendant Clifford Kerley is charged with violating 18 U.S.C. § 228 (a)(3), (c)(2), which criminalizes the willful failure to pay a past due child support obligation for a child residing in a different state. Defendant has made a motion to dismiss the information in this case because of various alleged due process violations, including that he was not assigned counsel during the paternity proceedings that resulted in the underlying support order that now forms the basis of this criminal prosecution. This Court heard argument from counsel on November 7, 2003 and, in an Order dated November 17, 2003, directed the parties to submit further briefing on the issues of (1) whether, according to the plain language of the statute and/or the legislative history, Congress intended to allow a defendant to collaterally attack a support order underlying an 18 U.S.C. § 228 prosecution on the basis that he was not afforded counsel during the paternity proceeding; and (2) whether Defendant had a due process right to counsel under the United States Constitution in his New York State paternity proceeding.
Having now read the further submissions by counsel, this Court finds that Defendant Kerley did not have a due process right to counsel in his New York State paternity proceeding. The Court also rejects the additional alleged due process violations raised by Defendant. As this Court concludes that Defendant's due process rights were not violated in the underlying New York State Family Court proceedings, this Court need not reach the issue of whether a defendant may collaterally attack a support order underlying an 18 U.S.C. § 228 prosecution on the basis that he was not afforded due process during the paternity proceeding. Defendant's motion is DENIED.
FACTS
Mr. Kerley is charged with willful failure to pay a child support obligation, which was imposed in New York Family Court after a default finding of paternity on July 6, 1990. Mr. Kerley received a summons in Spring 1990 to appear in New York Family Court to respond to allegations of paternity made by the New York City Commissioner of Social Services on behalf of a woman named Judith Lopez ("petitioning mother"), who claimed that she gave birth to twin girls in March 1999 and that Mr. Kerley was the girls' father. (Def. Mem. at 2-3).
Mr. Kerley appeared before a hearing examiner in New York Family Court ("the Examiner"), contested paternity and requested that the Examiner order blood and genetic marker tests ("blood tests") to determine whether he could be medically excluded as the father of the children. (Def. Mem. at 3). The Examiner granted Mr. Kerley's request and issued an order requiring the parties to undergo blood tests. (Def. Ex. B). The Examiner did not assign Mr. Kerley counsel, and Mr. Kerley did not request the appointment of counsel. Mr. Kerley claims to have been indigent at the time in question. (Kerley Aff. ¶ 9).
The Examiner's order required Mr. Kerley, the petitioning mother, and her children to appear at a specified laboratory on May 2, 1990 at 2:00 p.m. to undergo blood tests. Mr. Kerley did not appear for his blood test appointment' and does not allege that he attempted to contact the Examiner or the laboratory before the appointment to inform them that he would be unable to appear. The petitioning mother and her children appeared at the blood test appointment but did not undergo testing after Mr. Kerley failed to appear. (Kerley Aff. ¶ 4). Mr. Kerley claims that he attempted to contact Family Court after he missed his blood test appointment, but was simply directed to appear at his next scheduled court date.
Mr. Kerley claims that he did not appear for the blood tests because he was ill. (Kerley Aff. ¶ 3).
In his Memorandum of Law in support of his pretrial motions, Defendant claims that he "attempted to contact the Family Court to reschedule the tests," however, in his Affirmation Defendant only avers that he attempted to contact the Court prior to the next scheduled court date "because [he] was concerned that he would have to pay for the medical tests since I missed the time at which I was to appear at the laboratory." (Kerley Aff. ¶ 7). The Affirmation does not declare that Defendant attempted to reschedule his blood test appointment. Rather he merely alleges that he was "never given an opportunity by the Court: to reschedule the single appointment made for me at the medical laboratory to take the blood and genetic-marker tests." (Kerley Aff. ¶ 6).
Mr. Kerley also failed to appear for his next scheduled court date in July 1990. He claims that he did not entirely fail to appear, but merely "arrived late" to his court date, at which time he learned that default orders of filiation and support had been entered against him. (Kerley Aff. ¶ 8). After the state orders were entered, Mr. Kerley moved to Indiana. (Def. Mem. at 4). Mr. Kerley made a motion to vacate these orders in March 1995; the motion, which was filed well after the one-year time limit prescribed by statute expired, was unsuccessful. (Def. Ex. F.; Gov. Ex. E).
Mr. Kerley has failed to pay child support to the petitioning mother since November 1992. (Gov. 10/22/03 Letter Br. at 1). In 2002, Defendant Kerley was arrested in Indiana for the willful failure to pay court-ordered child support.
DISCUSSION
In determining whether due process requires the state to provide Defendant with counsel for the civil paternity proceeding, this Court is guided by the Supreme Court's decision in Lassiter v. Department of Social Services, 451 U.S. 18 (1981). The Lassiter Court found that due process does not require the appointment of counsel for indigent respondents in every parental status termination proceeding, but rather whether to appoint counsel must be determined in each individual proceeding by the trial court, subject to appellate review. The Lassiter Court further held that the Due Process Clause creates a presumption that an indigent litigant has a right to appointed counsel only when an adverse decision would result in his or her deprivation of physical liberty. The other elements of a court's due process decision — enumerated in Matthews v. Eldridge, 424 U.S. 319, 335 (1976) — namely the private interest at stake, the government interest, and the risk that the procedures used will lead to erroneous decisions, must be balanced against each other and then weighed against the presumption.
Defendant cites several New York state court cases, which hold that there is a federal due process right to the appointment of counsel in paternity suits. (Def. Mem. at 14-15). The Court has read these cases but believes that the proper analysis is articulated in Lassiter, which as a Supreme Court case is controlling.
A. Presumption of Right to Counsel
The Due Process Clause creates a presumption that an indigent litigant has a right to appointed counsel only when an adverse decision would result in his or her deprivation of physical liberty. E.g. Lassiter, 452 U.S. at 26-27; see also in re Pi Bella, 518 F.2d 955, 959 (2d Cir. 1975) (extending right to counsel to a contempt proceeding, "where the defendant is faced with the prospect of imprisonment"). Here, as in Lassiter, Defendant's paternity proceedings could not have resulted in the deprivation of a litigant's liberty. Defendant's paternity proceedings could — at most — result in an order requiring Defendant to pay child support. Therefore, there is a presumption that Defendant was not entitled to counsel at his paternity proceedings.
Defendant argues that a "putative father faces a possible loss of liberty if a paternity finding is entered against him and he subsequently fails to pay court ordered child support." (Def. Supp. Mem. at 11). However, a "putative" father can only be deprived of his physical liberty if he (1) fails to pay a court ordered support obligation, and (2) a subsequent proceeding (e.g., a contempt proceeding or a criminal proceeding such as this) are brought against him. It is only at this subsequent proceeding that a putative father is faced with a potential deprivation of his physical liberty, and thus it is at that subsequent proceeding that a presumption in favor of the right to appointed counsel exists.
B. Private Interests
The private interests at stake in a paternity proceeding are significant. As explained by the Supreme Court in Little v. Streater:
This Court frequently has stressed the importance of familial bonds, whether or not legitimized by marriage, and accorded them constitutional protection. Just as the termination of such bonds demands procedural fairness, so too does their imposition. Through the judicial process, the State properly endeavors to identify the father of a child born out of wedlock and to make him responsible for the child's maintenance. Obviously, both the child and the defendant in a paternity action have a compelling interest in the accuracy of such a determination.452 U.S. 1, 13 (1981).
C. Government Interest
The state has a legitimate interest in the welfare of a child born out of wedlock who is receiving public assistance, as well as in securing support for the child from those who are legally responsible. Little, 452 U.S. at 14. Although the state shares the interest of the child and the Defendant in an accurate and just determination of paternity, it has a countervailing financial interest: to determine paternity actions as economically as possible The appointment of counsel will clearly add to the state's costs in determining paternity.
Although this financial concern might otherwise prove persuasive, at the time this paternity action took place, New York State had enacted a statute providing counsel to indigent respondents in paternity actions. N.Y. Fam. Ct. Act § 262(a) (McKinney 1990). Indeed, it appears that the family court hearing examiner's failure to provide Defendant with counsel during his paternity proceeding may have been an oversight rather than the sort of due process determination contemplated by the Lassiter Court. See Lassiter, 452 U.S. at 32 (leaving the decision whether due process calls for the appointment of counsel for indigent parents in termination proceedings to be answered in the first instance by the trial court).
The Court notes that defense counsel raised an additional due process issue at the November 7, 2003 oral argument, namely that the family court hearing officer's failure to abide by the New York statute providing for the appointment of counsel constitutes a due process violation. (Tr. at 25-26). The parties have not briefed this issue, but the Court is willing to entertain a motion on this basis if Defendant wishes to pursue this argument.
Defendant also contends that New York State Law was violated when the underlying support order was issued by a judicial hearing officer rather than a state court judge. (Def. Supp. Mem. at 9). The Court notes that this issue was raised in support of Defendant's argument that the underlying support order is subject to collateral attack — an issue which this Court does not reach. If Defendant wishes to argue that this failure itself constituted a due process violation, the Court will entertain such a motion.
The Defendant: must advise the Court at the next conference whether he intends to make either of these motions.
D. Risk of Erroneous Decision
The third Eldridge factor to be weighed is the risk that a putative father will be erroneously adjudged a child's parent because the putative father is not represented by counsel at the paternity proceeding. When faced with a similar question-whether the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment requires the state to provide counsel for indigent inmates in paternity proceedings initiated by the state and the mother — the Tenth Circuit reached different conclusions for proceedings prior to the blood test stage and proceedings that continue past: the blood-test stage. In Nordgreen v. Mitchell, 716 F.2d 1335 (10th Cir. 1983), the Tenth Circuit found that the availability and reliability of paternity blood tests obviated the need for appointment of counsel in paternity proceedings "prior to the time the [blood] tests are given." Nordgreen, 716 F.2d 1337. In contrast, the Nordgreen Court noted that paternity cases that proceed past the blood test stage may require pre-trial investigation, discovery, expert opinion, and/or cross-examination. Id. at 1337-38. The court found that to deny an indigent putative father counsel would result in an "imbalance of litigative power" and thus concluded that "the provision of counsel in cases that proceed after the blood tests have been taken would help ensure the correctness of paternity decisions." Id. at 1338.
Here, the Examiner ordered Defendant, the petitioning mother, and the children to submit to blood tests. Defendant's failure to appear for the blood test appointment and subsequent failure to appear at the next court date resulted in a judgment of paternity being entered against him. Defendant argues that, had counsel been appointed, "counsel could have explained the importance of the blood tests to Mr. Kerley, assisted him in rescheduling those? tests if that were required, and appeared at the family court hearing at which the default orders were entered. (Def. Supp. Reply at 5). This Court reads the third prong of the Eldridge balancing test as an inquiry into whether an attorney's legal skills or training would alleviate the risk of erroneous decisions. See, e.g., Lassiter, 452 U.S. at 32-33 (discussing the legal and evidentiary issues presented at a parental rights termination proceeding and the difference, if any, the assistance of counsel would have made with respect to those issues). Although, as a practical matter, the mere presence of an attorney may have helped Mr. Kerley to avoid a default judgment of paternity, Mr. Kerley could have equally avoided a default judgment had he kept his blood test appointment or appeared at his court date. Any assistance that an attorney could have provided would not have been legal in nature, and thus this Court concludes that: the appointment of counsel would not: have enhanced the fairness or reliability of paternity proceedings in the pre-blood test stage in this case. Nordgreen, 716 F.2d at 1337.
Defendant also argues "counsel could have obtained discovery from the petitioner, investigated the mother's claims, cross-examined witnesses at a hearing, and presented witnesses on behalf of Mr. Kerley." (Def. Supp. Reply at 5). However, neither discovery nor a hearing were warranted at the time the default judgment of paternity was entered against Mr. Kerley; discovery and hearings would only be necessary if a blood test failed to eliminate Mr. Kerley as a possible father. As discovery and hearings were never necessary in Mr. Kerley's paternity suit, Mr. Kerley never required the assistance of counsel with those matters, and the Court does not factor that possible assistance into its calculus of the risk of erroneous decisions.
An attorney might have, for example, had more success in obtaining a new appointment date for a blood test or attempted to waive Mr. Kerley's appearance at the subsequent family court date and argue for an adjournment.
E. Balancing of Factors
The Court begins with the presumption that Defendant was not entitled to counsel at his paternity proceedings. There are strong private and public interests in ensuring an accurate determination of paternity; however, the appointment of counsel before the completion of blood tests would not have enhanced the fairness or reliability of the proceedings. Having balanced the Eldridge factors with the presumption against appointing counsel, the Court finds that the Defendant had no due process right to the appointment of counsel at his paternity proceedings.
F. Additional Due Process Violations
Defendant alleges that the Examiner's failure to require the petitioning mother and children to undergo blood tests even though Mr. Kerley did not appear for the blood test appointment violated his due process rights. Defendant also alleges that the Examiner's refusal to allow him the opportunity to reschedule his appointment violated his due process rights. The Court disagrees.
1. Failure to Enforce Order
At Defendant's request, the Examiner ordered that blood tests be performed on Defendant, the petitioning mother, and the children. (Def. Ex. B). Defendant failed to appear for the blood test appointment, and although the mother and children did appear, the laboratory did not conduct the test in Defendant's absence. Defendant argues that the order did not permit the petitioning mother to refuse to submit to the blood test in the event that Mr. Kerley did not appear for the appointment. (Def. Mem. at 18-19). Defendant equates the failure to require the petitioning mother and her children to submit to the blood tests — Defendant's own absence notwithstanding — with a failure to enforce a court order, which, Defendant argues, violated his due process rights.
The real obstacle to the enforcement of the Examiner's order for a blood test was the Defendant's failure to appear for the blood test, and Defendant's failure to appear was an indisputable violation of the order. Defendant cites no authority for the proposition that a court's failure to enforce it's own order violates due process rights. Moreover, as the order for blood tests could not be enforced due to Defendant's own absence, the Court does not find that the Examiner's failure to force the petitioning mother and her children to undergo blood tests violated Defendant's due process rights.
2. Refusal to Reschedule
Defendant argues that because he was "never given an opportunity to reschedule the single appointment made by the hearing officer for the administration of blood and genetic marker tests," his due process rights were violated. (Def. Mem. at 18). Defendant argues that "[a] review of New York State Family Court case law reveals that common practice of the Family Court was to provide the parties at least two dates for the administration of medical tests before imposing a penalty as a result of non-appearance." (Def. Mem. at 19).
Defendant provides no legal support for the proposition that a "common practice," without more, can create a due process right. Cf. Regents of University of Michigan v. Ewing, 474 U.S. 214, 224 (1985) (a due process property interest "cannot be inferred from a consistent practice without some basis in state law"). Moreover, here Defendant failed to appear for the court-ordered blood appointment: and his next scheduled court date. Under these circumstances, this Court does not find that the Examiner violated. Defendant's due process rights by failing to order a second blood test: appointment before entering a judgment of paternity.
CONCLUSION
Having established that the Defendant's due process rights were not violated at his paternity proceedings, the Court need not reach the issuer of whether a defendant may collaterally attack a support order underlying an 18 U.S.C. § 228 prosecution on the basis that he was not afforded due process during his paternity proceeding. Defendant's motion to dismiss the information on the basis that the underlying family court orders violated his due process rights is denied.The parties are directed to appear before the Court on February 9, 2004 at 4:00 p.m. for a pre-trial conference.
SO ORDERED.