Carroll v. Moore, 86-375

• Court: Supreme Court of Nebraska
• Citation: 423 N.W.2d 757,228 Neb. 561
• Docket Number: No. 86-375,86-375
• Parties: , 56 USLW 2735 Marcia Lee CARROLL, Appellee, v. Edwin Charles MOORE, Appellant.
• Decision Date: 20 May 1988

Page 757

423 N.W.2d 757 228 Neb. 561, 56 USLW 2735 Marcia Lee CARROLL, Appellee,
v.
Edwin Charles MOORE, Appellant. No. 86-375. Supreme Court of Nebraska. May 20, 1988.

Page 758

Syllabus by the Court

l. Constitutional Law: Due Process. Due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard.

2. Constitutional Law: Due Process: Right to Counsel. Under the U.S. Constitution, it is presumed that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty.

3. Constitutional Law: Due Process: Right to Counsel. Under the U.S. Constitution, the test that governs the due process right to court-appointed counsel is whether the absence of counsel deprives an indigent defendant of fundamental fairness. That test, in turn, involves an analysis of three separate factors: the private interests at stake, the government's interest, and the risk that the procedures used will lead to erroneous decisions.

4. Constitutional Law: Due Process: Right to Counsel: Paternity. Due process requires that an indigent defendant has an absolute right to court-appointed counsel in paternity proceedings.

Roberta S. Stick, Lincoln, for appellant.

Patrick M. Heng, Deputy Lancaster Co. Atty., for appellee.

BOSLAUGH, CAPORALE, SHANAHAN, and GRANT, JJ., and BURKHARD, District Judge.

BOSLAUGH, Justice.

This was an action by the plaintiff, Marcia Lee Carroll, [228 Neb. 562] against the defendant, Edwin Charles Moore, to establish that the defendant was the father of the plaintiff's child born June 24, 1982. The plaintiff alleged that she had made application to the office of the county attorney for determination of paternity and support pursuant to Neb.Rev.Stat. § 43-512.02 (Reissue 1984).

The defendant's "answer" consisted of a letter enclosing a copy of a news article relating to two paternity suits then pending in this court.

Pursuant to a motion by the plaintiff, on July 5, 1985, the trial court ordered the plaintiff, the defendant, and the child to submit to blood tests. On the same day, the trial court wrote to the defendant, advising him that the court would appoint counsel for the defendant if he was indigent. On July 22, 1985, the defendant wrote to the court, stating that he would need appointed counsel.

At a hearing on August 19, 1985, the trial court advised the defendant that the court would not appoint counsel for him and that if the defendant wanted representation it was his responsibility to hire his own counsel. The court also advised the defendant that his "answer" would be treated as a general denial. The court allowed the defendant to use a blood test made in a previous case in lieu of a new test as ordered on July 5.

The case came on for trial on March 26, 1986, with the defendant appearing pro se.

The following report of the result of the test done on blood drawn from the defendant on July 9, 1985, and from the plaintiff and the child on July 23, 1985, was received in evidence without objection:

 PATERNITY CASE REPORT
                 12-AUG-85
                 CHART NO. : 468791
                CHILD: ... SEX: ...
                 DATE OF BIRTH: 6-24-82 PLACE OF BIRTH:,
                MOTHER: CARROLL MARCIA L DATE OF BIRTH: 6-5-47
                PUTATIVE FATHER: MOORE EDWIN C DATE OF BIRTH: 8-9-50
                 RESULTS
                CHILD SAMPLE NO. 4380
                 ABO A1 RH R1R1 MNS NSNS KELL kk FY bb
                 Jk aa Lu P Di Gm
                 Km ACP BB ESD 11 ADA 11 AK 11
                 GPT 22 GLO 12 PGD AA HAPT 11 PGM1 1k2k
                 GC 11 BF SS PI M1M3 TNF C1C2 C3 SF
                MOTHER SAMPLE NO. 4381
                 ABO O RH R1R1 MNS NSNs KELL kk Fy bb
                 Jk aa Lu P Di Gm
                 Km ACP AB ESD 12 ADA 11 AK 11
                 GPT 22 GLO 22 PGD AA HAPT 11 PGM 1-2k
                 GC 11 BF SF PI M2M3 TNF C1C1 C3 SF
                PUTATIVE FATHER SAMPLE NO. 4321
                 ABO A1 RH R1r MNS MNSs KELL kk Fy 0
                 Jk aa Lu P Di Gm
                 Km ACP BB ESD 11 ADA 11 AK 11
                 GPT 12 GLO 12 PGD AA HAPT 11 PGM1 1k
                 GC 11 BF SF PI M1M1 TNF C1C2 C3 SS
                 TYPE I EXCLUSIONS: NONE
                 TYPE II EXCLUSIONS: NONE
                 EXCLUSION RATE FOR CAUCASIANS 0.99901474
                 EXCLUSION RATE FOR BLACKS 0.99989253
                 EXCLUSION RATE FOR HISPANICS 0.99947333
                 PROBABILITY OF PATERNITY = 0.99991596
                 ODDS OF PATERNITY 11898. : 1
                

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[228 Neb. 563] The letter accompanying the report stated that "99.99% of the male population has been excluded by this testing. Mr. Edwin Charles Moore has odds of 11,898 to one in favor of being the biological father of [the child]. This is a probability of paternity of 99.99%."

The trial court found that the defendant was the natural father of the child and fixed the child support at $75 per month commencing April 1, 1986, and increasing to $125 per month on June 1, 1986, and continuing until the child reaches the age [228 Neb. 564] of 19, marries, dies, or becomes self-supporting, or until further order of the court.

The defendant has appealed and contends that the trial court erred in refusing to appoint counsel for the defendant and in ordering child support in the amount of $125 per month.

The principal issue is whether an indigent person who is alleged to be the father of a child is entitled to the appointment of counsel in a paternity proceeding. Nebraska has no statute providing for the appointment of counsel under those circumstances. The defendant contends that the due process clauses of the Constitutions of the United States and this state require that he be furnished counsel.

In Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981), the mother of an illegitimate child who was a recipient of public assistance alleged that the defendant was the father of the child. The mother was provided with counsel by the state in order to initiate the paternity suit. The defendant's counsel was furnished by a legal aid group for the purpose of requesting that the trial court order blood grouping tests. A state statute then in effect provided that the costs of blood tests were chargeable to the moving party. The defendant asserted indigency and asked the state to subsidize the costs of the tests. The trial court denied the defendant's motion, and no tests were performed. The defendant was subsequently found to be the child's father and ordered to pay support. The appellate court affirmed the denial of the defendant's motion, finding that neither due process nor equal protection rights had been violated in denying the defendant's motion.

On certiorari to the U.S. Supreme Court, the defendant contended that his due process rights were violated when the state refused to pay for blood grouping tests requested by an indigent. The court,

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citing Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), stated that " 'due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard.' " (Emphasis supplied.) 452 U.S. at 5-6, 101 S.Ct. at 2205-2206.

In determining whether or not an indigent paternity [228 Neb. 565] defendant's opportunity to be heard would be rendered "meaningless" by the denial of blood testing at the state's expense, the Court noted that "[s]ince millions of men belong to the possible groups and types, a blood grouping test cannot conclusively establish paternity. However, it can demonstrate nonpaternity.... It is a negative rather than an affirmative test with the potential to scientifically exclude the paternity of a falsely accused putative father." 452 U.S. at 7, 101 S.Ct. at 2206. The Court recognized a 1976 joint report of the American Bar Association (ABA) and the American Medical Association (AMA) which confirmed the fact that blood grouping tests were available to exonerate innocent putative fathers. The ABA-AMA report recommended use of the "seven blood test 'systems'--ABO, Rh, MNSs, Kell, Duffy, Kidd, and HLA." 452 U.S. at 8, 101 S.Ct. at 2206. These systems were found to be " 'reasonable' in cost and to provide a 91% cumulative probability of negating paternity for erroneously accused Negro men and 93% for white men." Id. The Court, citing Justice Brennan in Cortese v. Cortese, 10 N.J.Super. 152, 76 A.2d 717 (1950), wrote:

"[I]n the field of contested paternity ... the truth is so often obscured because social pressures create a conspiracy of silence or, worse, induce deliberate falsity.

"The value of blood tests as a wholesome aid in the quest for truth in the administration of justice in these matters cannot be gainsaid in this day. Their reliability as an indicator of the truth has been fully established. The substantial weight of medical and legal authority attests their accuracy, not to prove paternity, and not always to disprove it, but 'they can disprove it conclusively in a great many cases provided they are administered by specially qualified experts'...."

452 U.S. at 8, 101 S.Ct. at 2206.

In deciding the process which was constitutionally due the defendant, the Court considered the three factors set out in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976): (1) the private interests at stake; (2) the risk of erroneous results under current procedures, considered with the probable value of the suggested procedural safeguard; and (3) the governmental interests at stake.

[228 Neb. 566] The Court found that putative fathers' private interests in paternity proceedings were "substantial," 452 U.S. at 13, 101 S.Ct. at 2209, and included pecuniary interests (in avoiding support obligations), liberty interests (threatened by noncompliance with support orders), and interests relating generally to the creation of a parent-child relationship. "Just as the termination of such bonds demands procedural fairness, ... so too does their imposition ... [B]oth the child and the defendant in a paternity action have a compelling interest in the accuracy of such a determination." Little v....