Allen v. Division of Child Support Enforcement ex rel. Ware

• Decision Date: 20 February 1990
• Citation: 575 A.2d 1176
• Parties: Adam M. ALLEN, Respondent Below, Appellant, v. DIVISION OF CHILD SUPPORT ENFORCEMENT, ex rel., Sandra WARE, Petitioner Below, Appellee. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 1176

575 A.2d 1176

59 USLW 2040

Adam M. ALLEN, Respondent Below, Appellant, v. DIVISION OF CHILD SUPPORT ENFORCEMENT, ex rel., Sandra WARE Petitioner Below, Appellee.

Supreme Court of Delaware.

Submitted: Feb. 20, 1990.

Decided: June 13, 1990.

Barbara D. Crowell and Thaddeus J. Weaver of Morris, James, Hitchens & Williams, Wilmington, for appellant.

Allison E. Hare and Martha F. Sackovich, Deputy Attys. Gen., of Dept. of Justice, Wilmington, for appellee.

Before CHRISTIE, C.J., HORSEY and HOLLAND, JJ.

HOLLAND, Justice:

This is an appeal from the Family Court of the State of Delaware, in and for New Castle County. The sole issue before this Court is the Family Court's decision not to appoint counsel to represent an indigent incarcerated putative father, in a paternity proceeding initiated by the State. ¹ We hold that, under the circumstances of this case, as a matter of due process, the Family Court was required to appoint counsel for the putative father.

Facts

On December 2, 1985, the Division of Child Support Enforcement ("DCSE"), assignee of the right of the petitioner-appellee, Sandra Ware ² (the "Mother"), filed a civil petition against Adam M. Allen ("Allen"), alleging paternity and seeking child support for Adam Ware ("Adam"), born December 1, 1975. Allen and the Mother were never married. Allen has continuously denied that he is Adam's father.

On January 23, 1986, the Family Court ordered that medical tests for paternity be performed. Allen was already incarcerated for reasons which did not relate to the paternity proceeding. Due to apparent scheduling conflicts between the Department of Corrections and DCSE, blood was not drawn from Allen until February 29, 1988. The Mother and Adam had blood drawn on March 7, 1988. The record reveals that the Paternity Evaluation Report submitted in this case included the results of both blood grouping and human leukocyte antigen ("HLA") tests. See Blake v. Division of Child Support. Enf., Del.Supr., 525 A.2d 154, 159 (1987). See generally Plemel v. Walter, 303 Or. 262, 735 P.2d 1209, 1211-15 (1987); Moore v. McNamara, 201 Conn. 16, 513 A.2d 660 (1986). The results of the medical tests for paternity failed to exclude Allen as Adam's biological father. In fact, the test results indicated a 99.55% probability of paternity.

On July 21, 1988, a hearing was held by a Master of the Family Court ("Master"). 10 Del.C. § 913. Testimony was presented by Allen and the Mother. The results of the blood grouping test were also admitted as evidence. The Master concluded that Allen's paternity had been established. The Master recommended that Allen be ordered to pay fifty dollars ($50.00) a month in child support, retroactive to December 2, 1985. Allen petitioned for a review de novo of the Master's finding and recommendation. Id. Allen also requested that an attorney be appointed to represent him.

A de novo hearing, before a judge of the Family Court, was scheduled for January 10, 1989. The Mother failed to attend the hearing on January 10, 1989. As a result of the Mother's absence, the proceedings were postponed. On January 10, 1989, Allen, who had appeared pro se, reiterated his request for appointed counsel, emphasizing the evidentiary complexities of the blood grouping test and the possibility of imprisonment for failure to pay child support. The Family Court held that Allen did not have a right to have counsel appointed to represent him, as a matter of due process. The Family Court also declined to exercise its discretionary prerogative to appoint counsel for Allen. See 13 Del.C. § 814(a). ³

Another de novo hearing was scheduled on February 23, 1989. Both Allen and the Mother were present at this hearing. However, Allen's inappropriate conduct resulted in his removal from the courtroom. Thus, the February 23, 1989 paternity proceedings were conducted in Allen's absence. A Deputy Attorney General, representing DCSE, introduced evidence in support of the State's paternity petition.

The Family Court heard testimony from by the Mother. The Mother testified that she began engaging in sexual intercourse with Allen in 1973. She further stated that during the period of possible conception, she had intercourse with no one other than Allen. According to the Mother, when the child was born, Allen wanted the baby to be named Adam after him and she complied with that request. The Mother also testified that Allen held himself out to others as the father of the child and visited Adam until she forbid him from coming to her home. The Mother testified that it was not until she sought child support that Allen denied being Adam's father. The results of the blood grouping test were also admitted into evidence.

Based upon the evidence produced at the hearing, the Family Court found Allen to be the father of the child. Despite Allen's incarceration, the Family Court entered a support order in the amount of $100 per month retroactive to 1983, two years prior to the filing of the petition. Compare Division of Child Support Enf. v. Barrows, Del.Supr., 570 A.2d 1180 (1990) and Kenton v. Kenton, Del.Supr., 571 A.2d 778 (1990). Arrears were calculated at $6,300 as of February 1, 1989.

Allen filed a notice of appeal on March 1, 1989. In this Court, Allen again alleged that he was indigent and requested the appointment of counsel. On July 18, 1989, this case was remanded to the Family Court with instructions to determine Allen's financial status. Supr.Ct.R. 19(c). On August 7, 1989, the Family Court found that Allen was indigent, and had been indigent throughout its proceedings. On August 30, 1989, this Court appointed counsel for Allen, for the limited purpose of representing his interest in this appeal. The Court acknowledges its gratitude to Barbara D. Crowell, Esquire, and Thaddeus J. Weaver, Esquire, of Morris, James, Hitchens & Williams, for their representation of Allen in this appeal, pro bono publico.

Due Process Right to Counsel

Allen argues that, as a matter of due process, the Family Court was required to appoint an attorney to represent an incarcerated indigent putative father, in a paternity proceeding initiated by the State. The due process clause in the United States Constitution "imposes on the States the standards necessary to ensure that judicial proceedings are fundamentally fair." Lassiter v. Department of Social Services, 452 U.S. 18, 33, 101 S.Ct. 2153, 2163, 68 L.Ed.2d 640 (1981). "Due process, 'unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.' " Little v. Streater, 452 U.S. 1, 5, 101 S.Ct. 2202, 2205, 68 L.Ed.2d 627 (1981) (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 162, 71 S.Ct. 624, 643, 95 L.Ed. 817 (1951) (concurring opinion)). "Rather, it is 'flexible and calls for such procedural protections as the particular situation demands.' " Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)). Its precise requirements depend upon the context in which the issue is raised. The United States Supreme Court has concluded that its precedents "speak with one voice about what 'fundamental fairness' has meant, when the Court has considered the right to appointed counsel." Lassiter v. Department of Social Services, 452 U.S. at 26-27, 101 S.Ct. at 2159. In Lassiter, the Court held that those precedents have established a "presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty. It is against this presumption that all the other elements in the due process decision must be measured." Id.

In considering whether an indigent litigant, who does not face the possibility of immediate incarceration, has successfully rebutted the foregoing presumption, the "other elements" which must be considered are: "the private interests at stake, the government's interest, and the risk that the procedures used will lead to erroneous decisions." Id. at 27, 101 S.Ct. at 2159 (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976)). ⁴ A court must balance these elements against each other, and then set their net weight on the scales of justice against the presumption that there is a right to appointed counsel only where the indigent, if he or she is unsuccessful, may lose his or her personal freedom.

The issue presented in Lassiter was an indigent person's due process right to court-appointed counsel during a proceeding to terminate their parental rights. That same issue has been addressed by this Court. Matter of Carolyn S.S., Del.Supr., 498 A.2d 1095 (1984). In doing so, this Court stated "[w]e find no sound reason for interpreting the due process language of the Delaware Constitution differently than the Due Process Clause of the Federal Constitution has been interpreted by the U.S. Supreme Court in Lassiter." Id. at 1097-98. This Court found that "Lassiter stands for the rule that the [t]rial [j]udge, in the exercise of sound judicial discretion, is obligated to decide in the first instance whether due process requires the appointment of counsel for an indigent parent in a given case, subject to review on appeal." Id. at 1097.

In this case, the trial judge held that Allen did not have a right to appointed counsel, as a matter of due process. We must now review that decision, applying the two-step analysis set forth in Lassiter. Matter of Carolyn S.S., Del.Supr., 498 A.2d 1095 (1984). First, we must determine whether the due process evaluation contained in Eldridge, requires the presence of counsel. Second, we must set the net weight of the Eldridge analysis against the presumption that there is a right to appointed counsel only when the indigent, if he is unsuccessful, may lose his personal freedom. Lassiter v. Department of Social Services, 452 U.S. at 27, 101 S.Ct. at 2159. Accord Nordgren v. Mitchell, 716 F.2d 1335, 1336 (10th Cir.1...