Kennedy v. Wood

• Decision Date: 29 September 1982
• Docket Number: No. 4-382A51,4-382A51
• Citation: 439 N.E.2d 1367
• Parties: Russell B. KENNEDY, III, Appellant (Respondent below), v. Rita WOOD, Appellee (Petitioner below).
• Court: Indiana Appellate Court

Page 1367

439 N.E.2d 1367

Russell B. KENNEDY, III, Appellant (Respondent below), v. Rita WOOD, Appellee (Petitioner below).

No. 4-382A51.

Court of Appeals of Indiana Fourth District.

Sept. 29, 1982.

Stephen J. Moore, Chris Sautter, Legal Services Organization of Indiana, Inc., Bloomington, for appellant.

Frank I. Hamilton, Jr., Deputy Pros. Atty., Decatur County, Greensburg, Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Presiding Judge.

Russell Kennedy appeals a paternity judgment entered against him. He contends that he was indigent and, as such, was entitled to both court appointed counsel and a blood grouping test at State expense as rights provided by the Indiana Code and guaranteed by the United States Constitution.

We reverse.

After complainant Wood began receiving welfare benefits, she, represented by the deputy prosecuting attorney, commenced an action to have Kennedy adjudicated the father of her child born out of wedlock. The petition and notice of hearing, set for August 31, 1979, were sent to Kennedy on June 18, 1979. Kennedy apparently did not answer the petition. Thereafter, Kennedy was informed that a final hearing was set for August 31, 1979. Wood stopped receiving welfare benefits ¹ and did not pursue the matter to a final hearing at this time. Two years later, Wood began receiving welfare assistance again. On August 21, 1981, notice was sent to Kennedy that a final hearing would be held on October 2, 1981. Kennedy appeared at this hearing without counsel. Wood appeared in person and by counsel, the local deputy prosecutor. The court questioned Kennedy concerning his efforts to retain an attorney. After discovering that the cause had been filed for over two years, the court, without further consideration, indicated that Kennedy had had enough time to get an attorney and that the trial would immediately commence. Kennedy did not indicate he was indigent at this time, and the court did not inquire into his financial situation or appoint counsel for him. ² The trial began when complainant Wood testified implicating Kennedy as the father. Kennedy testified indicating that he had been unemployed for several months and had no income of any kind. He further suggested that Wood was the reason behind the two year delay in that she had failed to appear on the prior hearing date. Kennedy contested his paternity by testifying that Wood had been with several other men during the time in question. Because she had been out with other men, he requested a blood test. ³ The trial court then asked Wood if any of Kennedy's statements were true. She responded "no" and the court entered judgment in her favor without further consideration.

This court must decide whether under these circumstances due process required the appointment of counsel at State expense to represent Kennedy. Additionally, we must determine whether the blood grouping tests requested by him should have been provided at State expense.

Kennedy argues that because the State's involvement in this paternity action is significant and substantial he has a constitutional due process right to appointed counsel as an indigent. The State's involvement is a result of the enactment by the legislature of Ind.Codes 12-1-6.1-1 to -20, implementing Title IV-D of the federal Social Security Act. 42 U.S.C. Secs. 651-60 (1976). This Act requires states to establish or designate an agency to obtain and enforce orders for support of children for whom application to Aid to Families with Dependent Children has been made, and when necessary, to establish paternity to reduce the number of recipients. Under the statutory scheme, the designated agency, State Department of Public Welfare, contracts with prosecuting attorneys in each county to bring paternity actions under the authority of Ind.Code 31-6-6.1-2(b) (Supp.1980). ⁴

Because Wood's child was a recipient of this public assistance, she was required under Indiana law to name the putative father and to cooperate with the welfare department in establishing paternity or risk the loss of her assistance. ⁵ Ind.Code 12-1- 7-1.1; 470 I.A.C. 10-2-4. Thus, the prosecuting attorney filed the paternity action in Wood's name and the State agency became the recipient of the monthly support payments to be made once judgment was entered. Ind.Code 12-1-7-1.1 et seq. In addition, enforcement of this judgment has been made mandatory upon the State by federal regulations. 45 C.F.R. Sec. 303.6. "State action" obviously pervades this case; therefore, the constitutional obligation is considered within this context rather than the context of civil litigation between private parties.

The Fourteenth Amendment to the United States Constitution requires that no person shall be deprived of life, liberty, or property without due process of law. Due process, however, has never been, and perhaps never can be, precisely defined. Lassiter v. Department of Social Services, (1981) 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640. The phrase expresses the requirement of "fundamental fairness." Id. To meet due process requirements, appointed counsel has been required in certain circumstances, regardless of whether the action is labelled criminal or civil. In re Gault, (1967) 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (juvenile delinquency determination); Specht v. Patterson, (1967) 386 U.S. 605, 608, 610, 87 S.Ct. 1209, 1211, 1212, 18 L.Ed.2d 326 (sentencing post conviction); F. J. v. State, (1980) Ind.App., 411 N.E.2d 372 (mental commitment proceedings). ⁶

Whether due process requires appointment of counsel, however, depends upon the nature of the proceedings and the interests involved. There is a presumption that there is no right to appointed counsel in the absence of at least a potential deprivation of physical liberty. Lassiter, supra. Against this presumption, the other elements in the due process decision must be measured. The factors to be evaluated in deciding what due process requires are: "the private interests at stake, the government's interest, and the risk that the procedures used will lead to erroneous decisions." Id. (citing Mathews v. Eldridge, (1976) 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18). If these factors when weighed against the presumption, suffice to rebut that presumption, due process requires the appointment of counsel. Lassiter, supra.

In Indiana a paternity action is civil in nature. D. R. S. v. R. S. H., (1980) Ind.App., 412 N.E.2d 1257. However, as noted above, the "civil" label does not dictate that the appointment of counsel should be denied. Because no direct deprivation of liberty is involved we must consider the Eldridge factors and weigh them against the presumption before making any determination.

The private interests implicated here are substantial. See Little v. Streater, (1981) 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627. The paternity defendant has a direct financial interest because, as an adjudicated father, he may be obligated to provide support and education for the child which may extend beyond the child's majority. Garnishment of wages can follow a failure to pay support. The debt is not dischargeable in bankruptcy even if the support is assigned to the State. 42 U.S.C. Sec. 656(b). Additionally, it is enforceable against moneys held by the federal government. 42 U.S.C. Sec. 659. The support order is enforceable in other states through interstate assistance statutes. 42 U.S.C. Secs. 651-55. See Reynolds v. Kimmons, (1977) Alaska, 569 P.2d 799, at 802 (discussing significant effects of this type of litigation). Similarly, the adjudicated father's estate can be burdened by the child's claims to inheritance, worker's compensation benefits and insurance proceeds. See e.g., Mathews v. Lucas, (1976) 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651; Weber v. Aetna Cas. & Sur. Co., (1972) 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768; Tekulve v. Turner, (1979) Ind.App., 391 N.E.2d 673.

The paternity defendant has a substantial interest in the accuracy of the adjudication for other reasons. Although a paternity proceeding is not likely to result in immediate incarceration, a parent of a dependent child who intentionally fails to provide support when he is able to provide support may be held criminally liable. Ind.Code 35-46-1-5. At trial in such a charge, evidence introduced and admissions made without counsel in the paternity proceeding could play a significant role. ⁷ See Reynolds, supra. Moreover, the support order may result in contempt proceedings, Richardson v. Lake County Department of Welfare, 439 N.E.2d 722, 1982, Ind.App., and the paternity judgment is res judicata in subsequent civil proceedings. Basey v. Estate of Sowers, (1972) 154 Ind.App. 537, 290 N.E.2d 488.

Apart from the putative father's pecuniary interest in avoiding substantial support and his liberty interest threatened by possible sanctions for non-compliance, at issue is the creation of a basic human relationship of parent and child. In Little, supra, our United States Supreme Court discussed the significance of this relationship:

This Court frequently has stressed the importance of familial bonds, whether or not legitimized by marriage, and accorded them constitutional protection. See Stanley v. Illinois, 405 U.S. 645, 651-652, 92 S.Ct. 1208, 1212-13, 31 L.Ed.2d 551 (1972). Just as the termination of such bonds demands procedural fairness, see Lassiter v. Department of Social Services, U.S. , 101 S.Ct. 2153 L.Ed.2d (1981), 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.

See also Reynolds, supra at 802.

As the Little court noted the private interests of the child in an accurate...