Black v. Division of Child Support Enforcement
| Decision Date | 01 October 1996 |
| Docket Number | 1995,No. 445,445 |
| Citation | 686 A.2d 164 |
| Parties | James S. BLACK, Respondent Below, Appellant, v. DIVISION OF CHILD SUPPORT ENFORCEMENT/Aline Black, Petitioner Below, Appellee. . Submitted: |
| Court | Supreme Court of Delaware |
Upon Certification of Questions of Law from the Family Court. Questions Answered.
Court Below: Family Court of the State of Delaware in and for New Castle County; File No. A-0535.
Mark D. Sisk, Hughes, Sisk & Glancy, P.A., Wilmington, for Appellant.
Peter S. Feliceangeli (argued) and Elizabeth Alice Saurman, Deputy Attorneys General, Department of Justice, Wilmington, for Appellee.
Before VEASEY, C.J., WALSH and BERGER, JJ.
This matter is before the Court as the result of the certification of four questions of law pursuant to Article IV, Section 11(9) of the Delaware Constitution and Delaware Supreme Court Rule 41. The questions of law were certified by the Family Court of the State of Delaware and were accepted by this Court by order dated December 18, 1995.
The primary issue to be addressed in this appeal concerns the right, if any, of an indigent obligor to have counsel appointed for him at public expense when faced with possible incarceration for failure to pay court ordered child support. The remaining three questions relate to: (i) the method for determining when a liberty interest is implicated in a civil contempt proceeding; (ii) the point in the proceeding at which the right to counsel attaches; and (iii) whether the Office of the Public Defender is precluded from representing an indigent defendant in civil contempt cases. Upon careful consideration of the parties' briefing and oral argument, the decision of this Court on the certified questions of law is as follows.
We hold that: an indigent obligor who faces the possibility of incarceration in a State initiated civil contempt proceeding does have a due process right to court appointed counsel: the right of a defendant to have counsel appointed should be determined on an individual case basis in accordance with the presumption announced in Lassiter v. Department of Social Services of Durham County, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) and adopted by this Court; the right of a defendant to have counsel appointed in a civil contempt proceeding for a violation of a support order does not attach until the defendant is brought before a judicial officer who possesses the authority to incarcerate the defendant; and 29 Del.C. § 4602 prohibits the Office of Public Defender from representing defendants in civil contempt proceedings even if incarceration is a likely outcome.
James S. Black ("Father"), fathered six children with Aline Black ("Mother"). 1 On July 30, 1993, in accordance with 13 Del.C. Ch. 5, Father was placed under a support order for the support of his six minor children. Mother receives Aid to Families with Dependant Children (hereinafter "AFDC") for the parties' children. As a result of paying AFDC benefits the State, through the Division of Child Support Enforcement ("DCSE"), has been subrogated to Mother's entitlement to child support. 42 U.S.C. §§ 654(4), 602(a)(26); 31 Del.C. § 504(a). It is alleged that Father has failed to remit payments in a timely fashion as required under the support order and has fallen into arrears on his child support obligation. 2
On November 15, 1994, the DCSE filed a petition for a Rule to Show Cause why Father should not be held in civil contempt for failure to comply with the court's July 30, 1993 Order. A hearing on Father's contempt petition was scheduled for January 30, 1995 and was subsequently rescheduled for June 21, 1995. 3 At that hearing, DCSE was represented by the Attorney General's Office and Father appeared pro se.
After the taking of testimony, the State requested that the court find Father in civil contempt of the support order and as a sanction, sought the Father's commitment to a work release program until such time as he was able to reduce the child support arrears by a sum certain. 4 In view of the Father's apparent indigency, the Family Court raised the issue of his possible right to counsel in a State-initiated civil contempt proceeding. In lieu of ruling on the contempt sanction, the Family Court requested this Court to consider the constitutional implications of Father's status. Counsel was appointed to brief and argue the Father's position in this Court. 5
The initial certified question of law to be addressed, and one of first impression in the State of Delaware, is whether an indigent support obligor who is faced with possible incarceration has a due process right to court appointed counsel in a State-initiated civil contempt proceeding. Our review of the decisional law of other jurisdictions as well as the relevant United States Supreme Court rulings persuades us that the first certified question must be answered in the affirmative.
The right to counsel in a civil contempt proceeding is derived from the Due Process Clause of the Fourteenth Amendment to the United States Constitution and is designed to protect the most cherished of liberty interests, personal freedom. Lassiter, 452 U.S. at 18, 101 S.Ct. at 2155. The method or manner of determining when the right to appointed counsel exists through due process, defies easy definition. Due process is not a quantifiable term which can be applied as a technical concept, fixed in content, unrelated to time and circumstance. Little v. Streater, 452 U.S. 1, 5, 101 S.Ct. 2202, 2205, 68 L.Ed.2d 627 (1981). Rather, it is flexible and demands such procedural protections as are called for by a particular situation. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).
In the present context where the possibility of incarceration exists, due process may be viewed as analogous to the concept of "fundamental fairness," the driving force behind the requirement of appointed counsel for indigent defendants in criminal prosecutions. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Under Gideon and its progeny fundamental fairness required the appointment of counsel before an indigent defendant could be incarcerated, regardless of how brief the sentence imposed. The correlative concepts of due process and fundamental fairness appear equally applicable to civil proceedings which are likely to result in a period of incarceration. It is the defendant's interest in personal freedom as secured under the Due Process Clause which triggers the right to appointed counsel in a civil proceeding. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).
The Supreme Court has long recognized that a bright line test for the appointment of counsel under the Due Process Clause may prove an unworkable concept. Instead the Court has developed a flexible standard to guide judges in determining whether the appointment of counsel is constitutionally required. This rule is referred to as the Lassiter presumption:
in sum, the Court's precedents speak with one voice about what 'fundamental fairness' has meant when the Court has considered the right to appointed counsel, and we thus draw from them the presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his personal liberty. It is against this presumption that all the other elements of the due process decision must be measured.
Lassiter, 452 U.S. at 26-27, 101 S.Ct. at 2159 (emphasis added). In applying this presumption the Supreme Court has adhered to the idea that an indigent defendant who faces a significant likelihood of incarceration must be appointed counsel at State expense. Id.
This Court has ruled consistently that "due process of law" in the Federal Constitution is deemed to have substantially the equivalent meaning as the phrase "law of the land" in the Delaware Constitution. 6 Opinion of the Justices, Del.Supr., 246 A.2d 90 (1968); Matter of Carolyn S.S., Del.Supr., 498 A.2d 1095 (1984). Thus we adopt the Lassiter presumption but conclude that there is no basis for enlarging this prescription under Delaware constitutional standards into a fixed rule of entitlement to counsel. Matter of Carolyn S.S., at 1098.
Consistent with the Due Process Clause, the right to the appointment of counsel, transcends administrative or procedural distinctions in judicial proceedings. Therefore, the Lassiter presumption applies to all State-initiated contempt proceedings where the defendant is faced with the possibility of losing his personal freedom, regardless of whether the contempt hearing is styled civil or criminal. See, Gault, 387 U.S. at 1, 87 S.Ct. at 1428. We recognize that to maintain the orderly administration of justice, there may continue to be valid reasons for labeling one contempt hearing civil and another criminal. See DiSabatino v. Salicete, Del.Supr., 681 A.2d 1062 (1996). For purposes of the due process analysis, however, the lynchpin for determining if counsel must be appointed continues to be the risk of incarceration faced by the indigent obligor.
Having determined that due process may require the appointment of counsel we now focus on the proper application of this presumption to the facts of a given situation. The right to the appointment of counsel for an indigent obligor should be determined on an individual case basis in accordance with the Lassiter presumption as adopted by this Court. Since Lassiter presumes an entitlement to court appointed counsel only when a defendant is faced with the possible deprivation of his physical liberty, the trial judge is obligated to determine in the first instance whether the defendant faces the possibility of incarceration. If he does, the presumption attaches and due process requires counsel be appointed for the indigent obligor.
It should be noted that, as a defendant's interest in personal liberty diminishes, so too do...
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